05Restricted Payments Clause Samples
05Restricted Payments. (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, (I) declare or pay any dividend or make any payment or distribution on account of the Borrower’s or any of its Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger or consolidation other than (x) dividends or distributions payable by the Borrower solely in Equity Interests (other than Disqualified Stock) of the Borrower, or (y) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities; (II) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Borrower, including in connection with any merger or consolidation; (III) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any 160 1002217597 1001820109v3
(1) no Default shall have occurred and be continuing or would occur as a consequence thereof; (2) immediately after giving effect to such transaction on a pro forma basis, the Borrower could incur $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 7.02(a); and (3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Borrower and its Restricted Subsidiaries after the Closing Date (including Restricted Payments permitted by Section 7.05(b)(1), (2) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (b) thereof only), (8) and (12), but excluding all other Restricted Payments permitted by Section 7.05(b)), is less than the sum of (without duplication): (A) 50% of the Consolidated Net Income of the Borrower for the period (taken as one accounting period) beginning July 1, 2013 to the end of the Borrower’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of ...
05Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, if a Default has occurred and is continuing, except that:
(a) so long as (i) no Event of Default under Section 9.01(a) or Section 9.01(h) shall have occurred and be continuing and (ii) the Obligations have not been accelerated pursuant to Section 9.02 as a result of the occurrence of an Event of Default, Parent and Borrower may declare and make cash distributions to its shareholders and partners, respectively, in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 7.16(a) and to avoid the imposition of federal income or excise taxes imposed under Sections 857(b) and 4981 of the Internal Revenue Code; and
(b) Subsidiaries of the Borrower may make Restricted Payments to the Borrower or any other Subsidiary of the Borrower.
05Restricted Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of such Equity Interests in respect of which such Restricted Payment is being made; and
(b) the Borrower and each Subsidiary may pay withholding or similar taxes payable by any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in connection with any repurchases of Equity Interests or the exercise of stock options.
05Restricted Payments. Declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, if any Event of Default shall have occurred and be continuing or would result therefrom; provided that
(a) each Consolidated Party (other than Borrower) may declare and make Restricted Payments ratably to the holders of such Consolidated Party’s Equity Interests according to their respective holdings of the type of Equity Interests in respect of which such Restricted Payment is being made;
(b) any Consolidated Party may declare and make Restricted Payments payable solely in the common stock or other common Equity Interests in such Person; and
(c) so long as (i) no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would not result therefrom and (ii) none of the Obligations have been accelerated under Section 8.02, Borrower may declare and make Restricted Payments in any fiscal year in an aggregate amount equal to the amount required to be paid by Borrower to its equity holders in order for Borrower to maintain its REIT status.
05Restricted Payments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make any Restricted Payments, except that if no Default or Event of Default has occurred both before and after giving effect to the making of such Restricted Payment, (a) the Restricted Subsidiaries may make Restricted Payments to the Borrower, (b) the Borrower may make Restricted Payments to its Equity Interest holders in an amount equal to the income tax liabilities of such Person attributable to the earnings of the Borrower, and (c) in addition to the foregoing permitted distribution for tax liabilities, the Borrower may make Restricted Payments to AMIH on account of Equity Interests for purposes of AMIH paying interest it owes under the Highbridge Note Purchase Agreement so long as (i) the aggregate amount of all such Restricted Payments under this clause (c) shall not to exceed the aggregate amount of cash contribution made by AMIH to Borrower on account of Equity Interests since the Amendment No. 7 Effective Date, (ii) before and after giving effect to such Restricted Payment, Availability is equal to or greater than 10% of the Borrowing Base then in effect, and (iii) after giving effect to each such Restricted Payment, the Pro Forma Fixed Charge Coverage Ratio is not less than 1.00 to 1.00."
(p) Section 6.06 (Investments) of the Credit Agreement is hereby amended by (i) deleting the word "and" found at the end of clause (e) found therein, (ii) moving clause (f) found therein to clause (g), and (iii) adding the following new clause (f) thereto:
05Restricted Payments. The Company will not, and will not permit any of its Subsidiaries to, declare, pay or make, or agree to declare, pay or make, directly or indirectly, any Restricted Payment, except (a) the Company may declare and pay dividends with respect to its Equity Interests (i) payable solely in additional shares of its common stock and (ii) payable in cash so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately before and after giving effect to such Restricted Payment, the sum of the unused amount of the Commitment plus the Company’s cash on hand as demonstrated to the Lender to its reasonable satisfaction shall be not less than $10,000,000, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Company may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Company and its Subsidiaries, and (d) the Company may repurchase its Equity Interests; provided that (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the aggregate amount of payments made by the Company for all such repurchases shall not exceed $10,000,000 for any fiscal year.
05Restricted Payments. Declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, if any Event of Default shall have occurred and be continuing or would result therefrom; provided that
(a) each Consolidated Party (other than Omega) may declare and make Restricted Payments ratably to the holders of such Consolidated Party’s Equity Interests according to their respective holdings of the type of Equity Interests in respect of which such Restricted Payment is being made;
(b) any Consolidated Party may declare and make Restricted Payments payable solely in the common stock or other common Equity Interests in such Person;
(c) any Consolidated Party may declare and make stock repurchases permitted by Section 7.15;
(d) each Consolidated Party may declare or make, directly or indirectly, any Restricted Payment required to be paid by Omega to its equity holders in order for Omega to maintain its REIT status or to avoid any federal income taxes and excise taxes; and
(e) each Consolidated Party may make, directly or indirectly, any Restricted Payment within sixty (60) days after the date of declaration thereof, if on the date of declaration of such Restricted Payment, no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom.
05Restricted Payments. No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries to, make any Restricted Payments except that, if no Default has occurred both before and after giving effect to the making of such Restricted Payment,
(a) Reserved;
(b) any Guarantor may make Restricted Payments to any other Guarantor and to the Borrower; and
(c) a Non-Guarantor Subsidiary may make Restricted Payments to any Guarantor and to the Borrower.
05Restricted Payments. No Borrower shall make, or agree to pay or make, directly or indirectly, any Restricted Payment except as permitted under the Constituent Documents of the Borrowers and, during the existence of any Event of Default if any Loans or L/ C Exposure are outstanding, no Restricted Payments shall be made to any Shareholder. Notwithstanding anything herein to the contrary, at all times (including during the existence of any Event of Default and while the Commitments are outstanding), Restricted Payments will be permitted only to Shareholders which are not Investors (a) so long as the Parent Borrower determines to remain a “real estate investment trust” under Section 856 of the Code, and (b) in the minimum amount of Restricted Payments required to be made in order to maintain the Parent ny-2788047 Borrower’s status as a “real estate investment trust” under Section 856 of the Code, meet the real estate investment trust distribution requirements set forth in Section 857(a) of the Code, and avoid the incurrence of entity level taxes under Sections 857(b)(1) and 4981 of the Code. Notwithstanding anything herein to the contrary, nothing herein shall be deemed to prohibit (i) the payment of Restricted Payments by any Subsidiary of a Borrower to such Borrower or to any other Subsidiary of such Borrower, including payments of Restricted Payments by Subsidiary Borrowers to the Parent Borrower, (ii) consent distributions to Investors or (iii) so long as an acceleration of the Loans is not then continuing during an Event of Default, repurchases by the Parent Borrower from the Shareholders.
05Restricted Payments. Borrower will not, and will not permit any Subsidiary to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to Borrower or to any Subsidiary Guarantor, ratably according to their respective holdings of such Equity Interests in respect of which such Restricted Payment is being made;
(b) Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(d) Borrower and each Subsidiary may pay withholding or similar taxes payable by any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in connection with any repurchases of Equity Interests or the exercise of stock options; and
(e) Borrower may (i) declare or pay cash dividends to its shareholders and (ii) purchase, redeem or otherwise acquire for cash its Equity Interests in each case so long as (i) both immediately prior to any such action and after giving pro forma effect thereto, (A) no Default shall have occurred and be continuing, and (B) Borrower is in compliance with the financial covenants set forth in Section 6.12 hereof.