Certain Restricted Payments. The following payments may be made at any time in accordance with the terms of this Agreement and the other Finance Documents, without complying with the conditions set forth in Section 11.1 (Conditions to Restricted Payments):
(a) reimbursements of equity (other than any Equity Contributions) pursuant to Section 3.4(a)(ii) (Mandatory Prepayments – Performance Liquidated Damages);
(b) reimbursements of equity (other than any Equity Contributions) pursuant to Section 5.2(h) (Insurance and Condemnation Proceeds) of the Common Security and Account Agreement;
(c) reimbursements of Drawstop Equity Contributions in accordance with Section 4.5(d)(iv) (Deposits and Withdrawals – Construction Account) of the Common Security and Account Agreement, but subject to all conditions precedent set forth in Section 4.3 (Conditions to Each Term Loan Advance) for an Advance in connection with such reimbursement of the Drawstop Equity Contributions have been met or waived and solely to the extent the proceeds of such Drawstop Equity Contributions have been used to pay Project Costs (it being understood and agreed that Equity Contributions shall be required to be applied from the Construction Account (or, prior to the Upsize Closing Date, the Excess Equity Proceeds Account, as applicable) to the payment of Project Costs and not to be subject to reimbursement under this clause (c));
(d) [reserved]; and
(e) so long as (i) the Obligors have satisfied the conditions to the Project Phase 2 Completion Date set forth in Section 14.3 (Conditions to Occurrence of the Project Phase 2 Completion Date), and (ii) on a pro forma basis, after giving effect to any Project Phase 2 Completion Date Distribution, Senior Debt/Equity Ratio shall be no greater than 75:25, the making of the Project Phase 2 Completion Date Distribution, if any, in accordance with Section 4.5(d)(vi) (Deposits and Withdrawals – Construction Account) of the Common Security and Account Agreement and Section 14.4(c) (Project Phase 2 Completion Date Waterfall) hereof.
Certain Restricted Payments. The Constituent Companies will not permit any Subsidiary that has issued Acceptable Subsidiary Preferred Stock to declare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement, cancellation, termination or other acquisition of, any of its Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, whether in Cash or property or in obligations of such Subsidiary (collectively, “Restricted Payments”), directly or indirectly, except that such Subsidiaries may (a) declare and pay dividends ratably with respect to its common Equity Interests and (b) redeem Acceptable Subsidiary Preferred Stock at its liquidation preference, issue additional Acceptable Subsidiary Preferred Stock and pay other dividends and distributions to the holders of its Acceptable Subsidiary Preferred Stock, provided that the aggregate amount of such Restricted Payments made by all such Subsidiaries pursuant to this clause (b) may not exceed $5,000,000 in any period of four consecutive fiscal quarters and provided further that no Restricted Payments shall be permitted under this clause (b) if a Default or an Event of Default under Section 11(a), (b), (g), (h) or (i) has occurred and is continuing or the Notes have been accelerated. Although it will not be a Default or an Event of Default if the Constituent Companies fail to comply with any provision of Section 10 on or after the Execution Date and prior to the Closing, if such a failure occurs, then any of the Purchasers may elect not to purchase the Notes on the date of Closing that is specified in Section 3..
1.4. Schedule A to the Note Agreement shall be and hereby is amended by adding or amending and restating, as applicable, in the correct alphabetical order the following definitions:
Certain Restricted Payments. The Borrower will not, during the Forbearance Period, make any Restricted Payments (a) in respect of preferred equity interests of WPG or the Borrower, other than pursuant to Section 10.12(d)(i)(B) of the Credit Agreement and other than exchanges of Equity Interests of the Borrower for common shares of WPG or (b) in respect of any Equity Interests held by current employees or members of the board of directors of WPG or the Borrower. For the avoidance of doubt and notwithstanding anything set forth in the Loan Documents, (x) WPG shall not be prohibited from paying compensation in the ordinary course of business pursuant to agreements in effect as of the Agreement Effective Date (including, for the avoidance of doubt, employee retention plans) including under any equity incentive plans in effect as of the Agreement Effective Date and (y) the Borrower shall be permitted to exchange its Equity Interests for common shares of WPG.
Certain Restricted Payments. Certain Affiliate Transactions 6.8 Non-Permitted Encumbrances
Certain Restricted Payments promptly, and in any event within five Business Days after the making of any such Restricted Payment, a written notice of any Restricted Payment made pursuant to Section 10.7(d).
Certain Restricted Payments. 1. As part of the consideration for the acquisition of certain assets from Global Medical Direct and affiliated entities, the Borrower is obligated to pay an additional earn-out payment of up to $4.0 million payable in common shares of the Borrower subject to meeting certain performance metrics. The earn-out payment provisions provide that on each earn-out calculation date, if the aggregate adjusted EBITDA of Complete Medical Homecare Inc. (“CMH”) exceeds $7.0 million for the preceding year then an earn-out payment of common shares will be made which is equal in value to the aggregate adjusted EBITDA of CMH for the preceding year multiplied by 14.285714%. The number of common shares to be paid is calculated by dividing the dollar value of the earn-out payment by the dollar volume weighted average trading price of the Borrower’s common shares on the Borrower’s principal trading market. The aggregate earn-out payments are subject to a $4.0 million cap. Based on the most recent forecast of EBITDA for CMH, the Borrower reduced the earn-out liability by $1.1 million in the first quarter of 2015 and wrote off the remaining amount in the second quarter. SC1:3966960.2D
Certain Restricted Payments. Section 7.06(e) of the Credit Agreement is hereby amended to read in full as follows:
Certain Restricted Payments. The Borrower will not make or become obligated to make any Restricted Payment unless, after giving pro forma effect thereto, (a) (i) the sum of the total Revolving Credit Exposures and the aggregate principal amount of outstanding Competitive Loans would not exceed (ii) the total Commitments minus the aggregate Net Proceeds received or to be received from the HRM Sale and (b) the Borrower and the Subsidiaries will have cash and cash equivalents in amounts consistent with the customary business practices of the Borrower and the Subsidiaries as determined in good faith by the Borrower.”
Certain Restricted Payments. The Canadian Borrower expects to voluntarily prepay in full its existing debt obligations under the existing Bank of Nova Scotia credit facility and will incur the related make-whole penalties.
Certain Restricted Payments. The Lessee will not make or become obligated to make any Restricted Payment unless, after giving pro forma effect thereto, (a) (i) the sum of the total Revolving Credit Exposures (as such term is defined in the Lessee Credit Agreement) and the aggregate principal amount of outstanding Competitive Loans (as such term is defined in the Lessee Credit Agreement) would not exceed (ii) the total Commitments (as such term is defined in the Lessee Credit Agreement) minus the aggregate Net Proceeds received or to be received from the HRM Sale and (b) the Lessee and the Subsidiaries will have cash and cash equivalents in amounts consistent with the customary business practices of the Lessee and the Subsidiaries as determined in good faith by the Lessee.
