Distributions; Upstream Payments. Obligors will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except: (a) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests; (c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year); (d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans; (e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and (f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.
Appears in 1 contract
Distributions; Upstream Payments. Obligors will notDeclare or make any Distributions, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments; or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15; provided, however, that (i) the Borrowers may make Distributions so long as: (A) no Default or Event of Default exists or is caused thereby, and except(B) upon giving pro forma effect thereto, for the 30 days preceding on an average daily basis and as of the Distribution, Availability is at least the greater of: (1) 20% of the Borrowing Base, and (2) $5,000,000; and (ii) in addition to any Distributions permitted under clause (i) above, Radiant may redeem its shares of the Series A Preferred Stock to the extent solely using identifiable proceeds of a substantially concurrent issuance and sale of common stock of Radiant.”
2. Effectiveness of this Amendment. The following shall have occurred before this Amendment is effective:
(a) the Company may declare and pay dividends with respect Lender shall have received this Amendment fully executed in a sufficient number of counterparts for distribution to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);all parties.
(b) each Obligor Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral of New Borrower, as well as UCC and each Subsidiary may purchaseLien searches and other evidence satisfactory to Lender that such Liens are the only Liens upon the Collateral of New Borrower, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;except Permitted Liens.
(c) if Lender shall have received a certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of New Borrower certifying that, after giving effect to this Amendment, (i) New Borrower is Solvent; (ii) no Default or Event of Default then exists exists; (iii) the representations and warranties set forth in Section 9 of the Loan Agreement are true and correct; and (iv) New Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(d) Lender shall have received a certificate of a duly authorized officer of New Borrower, certifying (i) that attached copies of New Borrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or would immediately result from revoked, and constitute all resolutions adopted with respect to such credit facility; and (iii) to the making title, name and signature of such Distributioneach Person authorized to sign the Loan Documents. Lender may conclusively rely on this certificate until it is otherwise notified by New Borrower in writing.
(e) Lender shall have received a written opinion of Fox Rothschild LLP, in form and substance satisfactory to Lender.
(f) Lender shall have received copies of the Company may repurchase charter documents of New Borrower, certified by the Secretary of State or redeem its other appropriate official of New Borrower’s jurisdiction of organization. Lender shall have received a good standing certificate for New Borrower, issued by the Secretary of State or other appropriate official of New Borrower’s jurisdiction of organization and each jurisdiction where New Borrower’s conduct of business or ownership of Property necessitates qualification.
(g) Lender shall have received copies of policies or certificates of insurance for the insurance policies carried by New Borrower, all in compliance with the Loan Documents, together with endorsements naming Lender as lender loss payee in form and substance satisfactory to Lender.
(h) Lender shall have received all certificates representing the Equity Interests owned of New Borrower pledged pursuant to the Loan Documents, to the extent such Equity Interests are certificated.
(i) The representations and warranties set forth herein and in the Loan Agreement (other than any such representations or warranties that, by employeestheir terms, officers are specifically made as of a date other than the date hereof) must be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any portion of any representation and warranty that is already qualified or directors modified by materiality in the text thereof).
(j) No event has occurred and is continuing that constitutes an Event of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service Default.
(k) All other documents and legal matters 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, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted transactions contemplated by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) Amendment shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant or executed or recorded and shall be in form and substance satisfactory to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DateLender.
Appears in 1 contract
Samples: Loan and Security Agreement (Radiant Logistics, Inc)
Distributions; Upstream Payments. Obligors will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company Borrower may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company Borrower or its Subsidiaries or make payments to employees, officers or directors of the Company Borrower or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);):
(d) the Company Borrower may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Administrative Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.
Appears in 1 contract
Samples: Term Loan and Security Agreement (DXP Enterprises Inc)
Distributions; Upstream Payments. Obligors will notDeclare or make any Distributions, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except (a) Upstream Payments, and except:
(ab) the Company may declare and pay declaration or payments of any dividends with respect to its Equity Interests or other Distributions payable solely in additional shares of its Equity Interests (the common stock or other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such DistributionPerson, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors and cash payments in lieu of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may repurchase its fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Investment; (c) any other Distributions if immediately before and after giving effect to the administration declaration and, if such Distribution does not occur within forty (40) days after such declaration, the making of its equity-based compensation plans any such Distribution, the Payment Condition is met; (d) any other Distribution made solely from time Excluded IP Asset Proceeds deposited in the Excluded IP Asset Proceeds Account so long as immediately before and after giving effect to time in effect the declaration and payment of any such Distribution, a Default or an Event of Default does not exist; and (e) Permitted Share Repurchases and, for the avoidance of doubt,
(A) payments on or about the Second Amendment Effective Date pursuant to the Hedging Agreements entered into in connection with the repurchase Permitted Convertible Note Debt and payments pursuant to any Hedging Agreements entered into by Parent in connection with any permitted refinancing of the Permitted Convertible Note Debt, and (B) the settlement of any related Hedging Agreement entered into in connection with the Permitted Convertible Note Debt under which Parent may be obligated to deliver common Equity Interests from employeesof the Parent, directors and other such recipients to satisfy federal, state including (i) by delivery of common Equity Interests of the Parent or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(eii) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments payment of a net amount in cash in respect of any early termination or discharges of, maturity of any such Investments) plus Hedging Agreement entered into in connection with the Permitted Convertible Note Debt or (y) so long as at delivery of common Equity Interests of the time of, and immediately after giving effect Parent or payment of a net amount in cash upon an early termination or maturity of any such Hedging Agreement; or create or suffer to such Distribution, the Secured Leverage Ratio is equal to exist any encumbrance or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt restriction on the date ability of such Distribution after giving effect a Subsidiary to such Distribution (and make any Debt incurred in connection therewith) and (ii) EBITDA as of Upstream Payment, except for restrictions under the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Loan Documents, under Applicable Law or permitted under Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date10.2.14.
Appears in 1 contract
Samples: Loan Agreement (Guess Inc)
Distributions; Upstream Payments. (a) Declare or make any Distributions, except, Obligors will not, and will not permit any of their Restricted Subsidiaries to, declare or may make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(ai) Upstream Payments;
(ii) the Company may declare and pay dividends make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests that do not constitute Disqualified Equity Interests (other than Disqualified Capital Stockincluding exchanges of Equity Interests for different classes);
(biii) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with Distributions by the proceeds received from the substantially concurrent issue of new common Equity InterestsCompany constituting Permitted Tax Distributions;
(civ) if so long as no Default or Event of Default then exists shall have occurred and be continuing or would immediately result from the making therefrom, repurchases or redemptions of such Distribution, the Company may repurchase or redeem its any Equity Interests owned by employees, officers or directors that are not Disqualified Equity Interests of the Company or its Subsidiaries Parent held by officers, directors or make payments employees (or their transferees, estates or beneficiaries under their estates) of Parent or any Obligor, including any repurchase, retirement or redemption pursuant to employeesstock option plans, officers employee benefit plans, or directors of the Company any shareholders’ agreement or its Subsidiaries other similar agreement or arrangement then in effect or upon their death, disability, retirement, severance or termination of employment or service service, provided, that the aggregate cash consideration paid for all such redemptions and payments shall not exceed $10,000,000 in connection with any Fiscal Year; provided, further that any unused amount in a Fiscal Year may be carried over to the exercise subsequent Fiscal Year for a maximum amount available under this clause of stock options$15,000,000 in any Fiscal Year;
(v) other cash Distributions by the Company so long as the Payment Conditions are satisfied before and after giving effect thereto;
(vi) to the extent constituting Distributions and without duplication of Section 10.2.14(e)(i), stock appreciation rights Distributions by the Company to Parent to pay Parent’s overhead costs and expenses incurred in the Ordinary Course of Business (including legal, accounting and other general and administrative expenses) in each case that are reasonable and customary and directly attributable to the ownership or similar equity incentives or equity based incentives pursuant operations of the Company and its Subsidiaries; provided, that no such Distribution may be made in respect of overhead costs and expenses directly attributable to management incentive plans or in connection with Unrestricted Subsidiaries unless a like amount has been received by the death or disability Obligors and their Restricted Subsidiaries from the Unrestricted Subsidiaries;
(vii) Distributions by the Company to the holders of such employees, officers or directors its Equity Interests in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to during the amount permitted in the immediately succeeding Fiscal Year)term of this Agreement; provided that no Default or Event of Default has occurred and is continuing or would result therefrom;
(dviii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, additional cash Distributions by the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed the Available Equity Amount at the time of such Distribution;
(when madeix) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options and (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), when taken together including deemed repurchases in connection with any Investments made pursuant to Section 10.2.4(k), the sum exercise of stock options or restricted stock units;
(x) $20,000,000 Distributions by the Company to Parent (after giving effect or any other Person of which the Company is a direct or indirect Subsidiary) to returns on, and repayments or discharges of, finance any such InvestmentsInvestment (including any Permitted Acquisition) plus permitted under Section 10.2.4 (yprovided that (x) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in any Distribution under this Section 10.2.3(eclause (a)(x) shall be made substantially concurrently with the closing of such Investment and (y) Parent (or such other parent entity) shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Company or one or more other Obligors, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Company or one or more other Obligors, in reference order to consummate such Investment in compliance with the applicable requirements of Section 10.2.4 as if undertaken as a direct Investment by the Company or the relevant Obligor) (any such Investment or Permitted Acquisition described in this clause (x), a “Permitted Parent Entity Investment”); and
(xi) Specified IPO Event Transactions; or
(b) create or suffer to exist any encumbrance or restriction on the ability of a Restricted Subsidiary to make an Upstream Payment, except for restrictions (i) Consolidated Secured Debt on under the date of such Distribution after giving effect to such Distribution (Loan Documents and any Debt incurred in connection therewith) and the Term Loan Documents, (ii) EBITDA as of the four-Fiscal Quarter period ending under Applicable Law, (iii) permitted under Section 10.2.12 and (iv) in effect on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DateDate as shown on Schedule 10.2.3.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Atlas Energy Solutions Inc.)
Distributions; Upstream Payments. (a) Declare or make any Distributions, except, Obligors will not, and will not permit any of their Restricted Subsidiaries to, declare or may make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(ai) Upstream Payments;
(ii) the Company may declare and pay dividends make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests that do not constitute Disqualified Equity Interests (other than Disqualified Capital Stockincluding exchanges of Equity Interests for different classes);
(biii) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with Distributions by the proceeds received from the substantially concurrent issue of new common Equity InterestsCompany constituting Permitted Tax Distributions;
(civ) if so long as no Default or Event of Default then exists shall have occurred and be continuing or would immediately result from the making therefrom, repurchases or redemptions of such Distribution, the Company may repurchase or redeem its any Equity Interests owned by employees, officers or directors that are not Disqualified Equity Interests of the Company or its Subsidiaries Parent held by officers, directors or make payments employees (or their transferees, estates or beneficiaries under their estates) of Parent or any Obligor, including any repurchase, retirement or redemption pursuant to employeesstock option plans, officers employee benefit plans, or directors of the Company any shareholders’ agreement or its Subsidiaries other similar agreement or arrangement then in effect or upon their death, disability, retirement, severance or termination of employment or service service, provided, that the aggregate cash consideration paid for all such redemptions and payments shall not exceed $10,000,000 in connection with any Fiscal Year; provided, further that any unused amount in a Fiscal Year may be carried over to the exercise subsequent Fiscal Year for a maximum amount available under this clause of stock options$15,000,000 in any Fiscal Year;
(v) other cash Distributions by the Company so long as the Payment Conditions are satisfied before and after giving effect thereto;
(vi) to the extent constituting Distributions and without duplication of Section 10.2.14(e)(i), stock appreciation rights Distributions by the Company to Parent to pay Parent’s overhead costs and expenses incurred in the Ordinary Course of Business (including legal, accounting and other general and administrative expenses) in each case that are reasonable and customary and directly attributable to the ownership or similar equity incentives or equity based incentives pursuant operations of the Company and its Subsidiaries; provided, that no such Distribution may be made in respect of overhead costs and expenses directly attributable to management incentive plans or in connection with Unrestricted Subsidiaries unless a like amount has been received by the death or disability Obligors and their Restricted Subsidiaries from the Unrestricted Subsidiaries;
(vii) Distributions by the Company to the holders of such employees, officers or directors its Equity Interests in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to during the amount permitted in the immediately succeeding Fiscal Year)term of this Agreement; provided that no Default or Event of Default has occurred and is continuing or would result therefrom;
(dviii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, additional cash Distributions by the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed the Available Equity Amount at the time of such Distribution;
(when madeix) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options and (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), when taken together including deemed repurchases in connection with any Investments made pursuant to Section 10.2.4(k), the sum exercise of stock options or restricted stock units;
(x) $20,000,000 Distributions by the Company to Parent (after giving effect or any other Person of which the Company is a direct or indirect Subsidiary) to returns on, and repayments or discharges of, finance any such InvestmentsInvestment (including any Permitted Acquisition) plus permitted under Section 10.2.4 (yprovided that (x) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in any Distribution under this Section 10.2.3(eclause (a)(x) shall be made substantially concurrently with the closing of such Investment and (y) Parent (or such other parent entity) shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Company or one or more other Obligors, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Company or one or more other Obligors, in reference order to consummate such Investment in compliance with the applicable requirements of Section 10.2.4 as if undertaken as a direct Investment by the Company or the relevant Obligor) (any such Investment or Permitted Acquisition described in this clause (x), a “Permitted Parent Entity Investment”); and
(xi) Specified IPO Event Transactions[reserved]; or
(b) create or suffer to exist any encumbrance or restriction on the ability of a Restricted Subsidiary to make an Upstream Payment, except for restrictions (i) Consolidated Secured Debt on under the date of such Distribution after giving effect to such Distribution (Loan Documents and any Debt incurred in connection therewith) and the Term Loan Documents, (ii) EBITDA as of the four-Fiscal Quarter period ending under Applicable Law, (iii) permitted under Section 10.2.12 and (iv) in effect on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DateDate as shown on Schedule 10.2.3.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Atlas Energy Solutions Inc.)
Distributions; Upstream Payments. Obligors The Borrowers will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except (1) Upstream Payments, and except:(2):
(a) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor the Borrowers and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 2,500,000 in any Fiscal Year (with unusedamounts in any unused amount in a Fiscal Year being added carried over to the amount permitted succeeding calendar years, but not to exceed $5,000,000 of repurchases or redemptions in the immediately succeeding any Fiscal Year);):
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) other Distributions (other than repurchases or redemptions of Equity Interests or cash distributions to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fholders of Equity Interests) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed $15,000,00010,000,000 during the term of this Agreement; and
(when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (xf) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so other Distributions as long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DatePayment Conditions are satisfied.
Appears in 1 contract
Distributions; Upstream Payments. Obligors will notDeclare or make any Distributions, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except (a) Upstream Payments, and except:
(ab) the Company may declare and pay declaration or payments of any dividends with respect to its Equity Interests or other Distributions payable solely in additional shares of its Equity Interests (the common stock or other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such DistributionPerson, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors and cash payments in lieu of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may repurchase its fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Investment; (c) any other Distributions if immediately before and after giving effect to the administration declaration and, if such Distribution does not occur within forty (40) days after such declaration, the making of its equity-based compensation plans any such Distribution, the Payment Condition is met; (d) any other Distribution made solely from time Excluded IP Asset Proceeds deposited in the Excluded IP Asset Proceeds Account so long as immediately before and after giving effect to time in effect the declaration and payment of any such Distribution, a Default or an Event of Default does not exist; and (e) Permitted Share Repurchases and, for the avoidance of doubt, (A) payments on or about the Second Amendment Effective Date pursuant to the Hedging Agreements entered into in connection with the repurchase Permitted Convertible Note Debt (2019), (B) payments around the First A&R Amendment Effective Date, the Second A&R Amendment Effective Date and the Third A&R Amendment Effective Date pursuant to the Hedging Agreements entered into in connection with the Permitted Convertible Note Debt (2023), (C) payments pursuant to any Hedging Agreements entered into by Parent in connection with any permitted refinancing of the applicable Permitted Convertible Note Debt, and (D) the settlement of any related Hedging Agreement entered into in connection with the applicable Permitted Convertible Note Debt under which Parent may be obligated to deliver common Equity Interests from employeesof the Parent, directors and other such recipients to satisfy federal, state including (i) by delivery of common Equity Interests of the Parent or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(eii) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments payment of a net amount in cash in respect of any early termination or discharges of, maturity of any such Investments) plus Hedging Agreement entered into in connection with the applicable Permitted Convertible Note Debt or (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date delivery of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as common Equity Interests of the four-Fiscal Quarter period ending on the last day Parent or payment of the most recent Fiscal Quarter for which Agent has received financial statements a net amount in accordance with Section 10.1.2(a) cash upon an early termination or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.maturity of any such Hedging Agreement;
Appears in 1 contract
Samples: Loan Agreement (Guess Inc)
Distributions; Upstream Payments. Obligors will notDeclare or make any Distributions, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests Upstream Payments; provided that any Upstream Payments by a Subsidiary (other than Disqualified Capital Stock)a Canadian Subsidiary that is a Subsidiary of UNFI Canada) to UNFI Canada shall not exceed U.S.$1,000,000 (or its equivalent in other currencies) in the aggregate during the term of this Agreement;
(b) each Obligor payments by any Borrower or Subsidiary in respect of withholding or similar Taxes payable by any future, present or former officer, director, manager or employee (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) and each Subsidiary may purchase, redeem or otherwise acquire its common any repurchases of Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making in consideration of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service including deemed repurchases in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives ; provided that the aggregate amount of all cash payments made pursuant to management incentive plans or in connection with the death or disability of such employees, officers or directors in an aggregate amount this clause (b) shall not to exceed $5,000,000 [10,000,000]15,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fc) Distributions not otherwise permitted by UNFI may purchase or redeem in whole or in part any other clause of this Section 10.2.3 in an aggregate amount not its Equity Interests for another class of Equity Interests or rights to exceed (when made)acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests of UNFI, provided that any terms and provisions material to the interests of the Lenders, when taken together with any Investments made pursuant as a whole, contained in such other class of Equity Interests are at least as advantageous to Section 10.2.4(k)the Lenders as those contained in the Equity Interests redeemed thereby. Notwithstanding the foregoing, UNFI may make Distributions to the sum extent (i) (A) no[ Default or] Event of (x) $20,000,000 (Default shall exist before or after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such proposed Distribution, (B) daily average Adjusted Aggregate Availability for the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 30 consecutive days immediately before making the proposed Distribution, calculated on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution as if such Distribution had been made at the beginning of such 30 day period, is at least [15]12.5% of the Aggregate Borrowing Base, and (and any Debt incurred in connection therewithC) Borrowers have a Fixed Charge Coverage Ratio of at least [1.10]1.00:1.00 for the most recently completed period of four Fiscal Quarters for which financial statements have been provided pursuant to Section 10.1.2, calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of such period of four Fiscal Quarters; provided that to the extent daily average Adjusted Aggregate Availability for the 30 consecutive days immediately before making the proposed Distribution, calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of such 30 day period, is at least [20]17.5% of the Aggregate Borrowing Base, this clause (C) shall not be applicable, and (ii) EBITDA as UNFI shall have delivered to the Administrative Agent and each Lender a statement, certified by the principal financial or accounting officer of UNFI, setting forth, in reasonable detail, computations (determined in a manner reasonably acceptable to the Administrative Agent) evidencing satisfaction of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements requirements set forth in accordance with Section 10.1.2(aclause (i) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Dateabove.
Appears in 1 contract
Samples: First Amendment Agreement (United Natural Foods Inc)
Distributions; Upstream Payments. Obligors will not, and will not permit any Without the prior written consent of their Subsidiaries tothe Lender, declare or makemake any Distributions, or agree to pay or make, directly or indirectly, any Distributions except (i) Upstream Payments, and except:
(aii) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if so long as no Event of Default then exists or would immediately result from the making of such Distributionshall have occurred and is continuing, the Company may repurchase or redeem its Equity Interests owned Distributions by employees, officers or directors of the Company or any Subsidiary to Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, (iii) Holdings and each of its Subsidiaries or make payments to employees, officers or directors may pay Distributions payable solely in the Equity Interests of Holdings; (iv) as a result of the Lender returning the remaining Required Cash Collateral to one or more of the Sponsors on the Required Cash Collateral Release Date (which return may be effective by Lender’s release of its Lien on the Required Cash Collateral), Holdings may pay liquidating distributions on the Required Cash Collateral Release Date with respect to Holdings’ preferred Equity Interests in an amount not to exceed the remaining Required Cash Collateral, and (v) on or after the Required Cash Collateral Release Date, Distributions from the Company or its Subsidiaries upon termination to Holdings (and in turn, if desired by Holdings, from Holdings to the holders of employment or service the Equity Interest 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, officers or directors Holdings) in an aggregate amount not to exceed $5,000,000 in the sum of (A) any Fiscal Year (with any unused amount in a Fiscal Year being added to Required Cash Collateral withdrawn by the amount permitted in Lender from the immediately succeeding Fiscal Year);
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned Cash Collateral Accounts as the result of options, stock grants an Event of Default under Section 10.3.1 or other awards made under such plans;
10.3.2 in accordance with the Security Agreement (eDeposit Accounts – Specific) to among certain of the extent constituting a Distribution, each Obligor Sponsors and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
the Lender plus (f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (xB) $20,000,000 (after giving effect to returns on2,500,000, and repayments or discharges of, any such Investments) plus (y) so long (a) as at the time of, both before and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to no Default or less than 3.60 to 1.00 on a pro forma basisEvent of Default shall have occurred or shall result therefrom, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(eand (b) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution immediately before and after giving effect to such Distribution Distribution, Obligors shall have a Fixed Charge Coverage Ratio of at least 1.25 to 1.00.
(and any Debt incurred in connection therewithi) and (ii) EBITDA as Section 10.2.15 of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements Credit Agreement is hereby amended in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior its entirety to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.read as follows:
Appears in 1 contract
Distributions; Upstream Payments. Obligors The Borrowers will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company may declare and pay dividends Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor the Borrowers and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity InterestsInterests by Parent;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Restricted Subsidiaries or make payments to employees, officers or directors of the Company Parent or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 2,500,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may make Distributions to repurchase its Equity Interests of the Parent in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) (i) the Company may declare and pay Distributions to the extent constituting a DistributionParent in amounts sufficient to make (A) Permitted Parent Payments (Tax), each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fB) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount Permitted Parent Payments (G&A) not to exceed the Consolidated G&A Cap or, in respect of Permitted Parent Payments (when made), when taken together with any Investments made pursuant G&A) attributable to Section 10.2.4(k)the Borrower Group, the sum Borrower Group G&A Cap (in each case, over any given four-Fiscal Quarter period or, during a Financial Reporting Trigger Period or a Covenant Trigger Period, for any given twelve-month period) and (C) so long as no Default has occurred and is continuing, Permitted Parent Payments described in clause (6) of (x) $20,000,000 (after giving effect to returns onthe definition thereof in respect of payments of interest on the Senior Notes, and repayments or discharges of, any such Investments(ii) plus the Company may declare and pay Distributions to the Parent in amounts sufficient to make other Permitted Parent Payments (ynot included in the immediately preceding clause (i)) so long as at the time of, of such Distribtuion and immediately after giving effect to such Distributionthereafter, the Secured Leverage Ratio is equal Payment Conditions are satisfied;
(f) the Company may declare and pay Distributions to or less than 3.60 the Parent from the Net Proceeds attributable to 1.00 on a pro forma basis, any Hawaii Retail Property Sale and Leaseback Transaction up to an aggregate amount equal not to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to exceed the lesser of (i) Consolidated Secured Debt on the date fair market value of such Distribution after giving effect the Hawaii Retail Property sold pursuant to such Distribution (any Hawaii Retail Property Sale and any Debt incurred in connection therewith) Leaseback Transaction and (ii) EBITDA as $100,000,000, provided that no Event of Default has occurred and is continuing immediately before or after such Distribution; and
(g) the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior Company may declare and pay Distributions to the first date financial statements Parent, so long as at the time of such Distribution and immediately thereafter, the Payment Conditions have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Datesatisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Par Pacific Holdings, Inc.)
Distributions; Upstream Payments. Obligors The Borrowers will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor the Borrowers and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 2,500,000 in any Fiscal Year (with unused amounts in any unused amount in a Fiscal Year being added carried over to the amount permitted succeeding calendar years, but not to exceed $5,000,000 of repurchases or redemptions in the immediately succeeding any Fiscal Year);):
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;; and
(e) other Distributions (other than repurchases or redemptions of Equity Interests or cash distributions to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fholders of Equity Interests) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), $15,000,000 during the sum term of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DateAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Key Energy Services Inc)
Distributions; Upstream Payments. Obligors will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company Borrower may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company Borrower or its Subsidiaries or make payments to employees, officers or directors of the Company Borrower or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);): 184
(d) the Company Borrower may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the 185 repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fe) Distributions not otherwise permitted by any other clause of this Section 10.2.3 Section
10. 2.3 in an aggregate amount for all such Distributions made following the Closing Date not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum greater of (xI) $20,000,000 and (after giving effect to returns on, and repayments or discharges of, any such InvestmentsII) plus (y) 25% of EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter; provided that so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 4.00 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flowsuch Distribution shall not be limited in amount. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.and
Appears in 1 contract
Samples: Term Loan and Security Agreement (DXP Enterprises Inc)
Distributions; Upstream Payments. Obligors will not, and will not permit any Without the prior written consent of their Subsidiaries tothe Lender, declare or makemake any Distributions, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(ai) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock)Upstream Payments;
(bii) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if so long as no Event of Default then exists or would immediately result from the making of such Distributionshall have occurred and is continuing, the Company may repurchase or redeem its Equity Interests owned Distributions by employees, officers or directors of the Company or any Subsidiary to Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries;
(iii) Distributions by Holdings to its members for the purpose of paying general and administrative expenses allocated to Holdings and its Subsidiaries or make payments by Parent and consistent with historical costs, less the amount of general and administrative expenses actually incurred by Holdings and its Subsidiaries, but not to employees, officers or directors exceed $10,000,000 in any twelve month period;
(iv) Holdings and each of its Subsidiaries may pay Distributions payable solely in the Equity Interests of Holdings;
(v) as a result of the Lender releasing the remaining Required Cash Collateral on the Required Cash Collateral Release Date (which return may be effective by Lender’s release of its Lien on the Required Cash Collateral), Holdings may pay Distributions to its members on the Required Cash Collateral Release Date in an amount not to exceed the remaining Required Cash Collateral; and
(vi) on or after the Required Cash Collateral Release Date, Distributions from the Company or to Holdings (and in turn, if desired by Holdings, from Holdings to its Subsidiaries upon termination of employment or service 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, officers or directors members) in an aggregate amount not to exceed $5,000,000 in the sum of (A) any Fiscal Year (with any unused amount in a Fiscal Year being added to Required Cash Collateral withdrawn by the amount permitted in Lender from the immediately succeeding Fiscal Year);
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned Cash Collateral Accounts as the result of options, stock grants an Event of Default under Section 10.3.1 or other awards made under such plans;
10.3.2 plus (e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (xB) $20,000,000 2,500,000, so long (a) as both immediately before and after giving effect to returns onsuch Distribution, no Default or Event of Default shall exist or shall occur as a result therefrom, and repayments or discharges of, any such Investments(b) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Obligors shall have a Fixed Charge Coverage Ratio is equal of at least 1.25 to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this 1.00.
(f) Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as 10.2.15 of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements Loan Agreement is hereby amended in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior its entirety to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.read as follows:
Appears in 1 contract
Distributions; Upstream Payments. Obligors The Borrowers will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company may declare and pay dividends Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor the Borrowers and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity InterestsInterests by Parent;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Restricted Subsidiaries or make payments to employees, officers or directors of the Company Parent or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 2,500,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may make Distributions to repurchase its Equity Interests of the Parent in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) (i) the Company may declare and pay Distributions to the extent constituting a Distribution, each Obligor Parent in amounts sufficient to make (A) Permitted Parent Payments (Tax) and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fB) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount Permitted Parent Payments (G&A) not to exceed the Consolidated G&A Cap or, in respect of Permitted Parent Payments (when made), when taken together with any Investments made pursuant G&A) attributable to Section 10.2.4(k)the Borrower Group, the sum of Borrower Group G&A Cap (xin each case, over any given four-Fiscal Quarter period or, during a Financial Reporting Trigger Period or a Covenant Trigger Period, for any given twelve-month period) $20,000,000 and (after giving effect ii) the Company may declare and pay Distributions to returns on, and repayments or discharges of, any such Investments) plus the Parent in amounts sufficient to make other Permitted Parent Payments (ynot included in the immediately preceding clause (i)) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect and immediately thereafter, the Payment Conditions are satisfied; and
(f) the Company may declare and pay Distributions to the Parent, so long as at the time of such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of immediately thereafter, the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements Payment Conditions have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Datesatisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Par Pacific Holdings, Inc.)
Distributions; Upstream Payments. Obligors The Borrowers will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except (1) Upstream Payments, and except:(2):
(a) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor the Borrowers and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 2,500,000 in any Fiscal Year (with unused amounts in any unused amount in a Fiscal Year being added carried over to the amount permitted succeeding calendar years, but not to exceed $5,000,000 of repurchases or redemptions in the immediately succeeding any Fiscal Year);):
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;; and
(e) other Distributions (other than repurchases or redemptions of Equity Interests or cash distributions to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fholders of Equity Interests) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), $15,000,000 during the sum term of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DateAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Key Energy Services Inc)
Distributions; Upstream Payments. Obligors The Borrowers will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except (1) Upstream Payments, and except:(2):
(a) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor the Borrowers and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 2,500,000 in any Fiscal Year (with unused amounts in any unused amount in a Fiscal Year being added carried over to the amount permitted succeeding calendar years, but not to exceed $5,000,000 of repurchases or redemptions in the immediately succeeding any Fiscal Year);):
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) other Distributions (other than repurchases or redemptions of Equity Interests or cash distributions to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fholders of Equity Interests) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed $10,000,000 during the term of this Agreement; and
(when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (xf) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so other Distributions as long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DatePayment Conditions are satisfied.
Appears in 1 contract
Distributions; Upstream Payments. Obligors will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) Declare or make any Distributions, except: (i) Upstream Payments; (ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the Company sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay mandatory payments and mandatory prepayments of principal, interest, fees and other obligations on account of Debt owing by Parent; (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may declare make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay dividends reasonable administrative and operating expenses, including, cash operating expenses, taxes, and Capital Expenditures arising solely out of the consolidated operations of Parent and its Subsidiaries; (iv) [reserved]; (v) Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make Investments permitted under clauses (k), (l) and (m) of the definition of “Restricted Investments” as defined in the Guaranty and Security Agreement so long as the Prepayment Conditions are satisfied; (vi) so long as the conditions to voluntary prepayment by Parent set forth in the applicable clauses of Section 5.2(g) of the Guaranty and Security Agreement and by the Borrowers set forth in the applicable clauses of Section 10.2.8 have been satisfied, distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to prepay, as applicable, the 2013 Senior Notes Debt, the Term Loan B Debt, and the Convertible Notes Debt; (vii) so long as the conditions with respect to its Equity Interests Parent set forth in Section 5.2(g)(g)(ii) of the Guaranty and Security Agreement have been satisfied and with respect to the Borrowers set forth in Section 10.2.8(f)(ii) have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay any amounts due and payable upon early termination of the Term Loan B Hedge or any portion thereof and (viii) so long as the conditions with respect to Parent set forth in Section 5.2(g)(c)(ii)(A) of the Guaranty and Security Agreement have been satisfied and with respect to the Borrowers set forth in Section 10.2.8(c)(ii)(A) hereof have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make cash payments in additional lieu of issuing fractional shares, cash settlement payments and net cash settlement payments, in each case, in connection with the settlement of the Convertible Notes, provided that the aggregate amount of cash payments made in lieu of issuing fractional shares of its Equity Interests with respect to the Convertible Notes shall not exceed five million dollars (other than Disqualified Capital Stock);$5,000,000) in the aggregate; or
(b) each Obligor and each create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary may purchaseto make any Upstream Payment, redeem or otherwise acquire its common Equity Interests with except for restrictions under the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such DistributionLoan Documents, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans under Applicable Law or in connection with the death or disability of such employees, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA Closing Date as of the four-Fiscal Quarter period ending shown on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DateSchedule 9.1.15.
Appears in 1 contract
Distributions; Upstream Payments. Obligors will not(a) Declare or make any Distributions, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and exceptother than:
(ai) Distributions, so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) after giving Pro Forma Effect thereto, the Company may declare and pay dividends Borrower is in Pro Forma Compliance with respect to its Equity Interests payable solely the financial covenants set forth in additional shares of its Equity Interests (other than Disqualified Capital Stock)Section 7.17;
(bii) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity InterestsUpstream Payments;
(ciii) if no Event acquisitions of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service Borrower in connection with the exercise of stock options, restricted stock units or stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans by way of cashless exercise or in connection with the death satisfaction of withholding tax obligations;
(iv) purchases or disability payments in lieu of such employeesfractional shares of the Equity Interests of the Borrower arising out of stock dividends, officers splits or directors combinations, business combinations or conversions of convertible securities (including Convertible Debt Securities);
(v) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, purchases, repurchases, redemptions, defeasances, acquisitions or retirements for value of (A) Equity Interests of the Borrower or any of its Subsidiaries from any officer, director, employee or consultant of the Borrower or its Subsidiaries in an aggregate amount not to exceed $5,000,000 10,000,000 during any year and (B) any non-cash rights distributed in any Fiscal Year (connection with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year)stockholder rights plan;
(dvi) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, repurchases of common stock of the Company may repurchase its Equity Interests Borrower in an amount not to exceed $25,000,000 over the term of this Agreement;
(vii) in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing any acquisition permitted pursuant to Section 10.2.1(h)7.04, (A) receive or accept the return to the Borrower or any of its Subsidiaries of Equity Interests of the Borrower or any of its Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims or (B) make payments or distributions to dissenting stockholders pursuant to applicable law;
(viii) payments or distributions to dissenting stockholders pursuant to applicable law;
(ix) the Borrower may enter into, exercise its rights and perform its obligations under Permitted Call Spread Swap Agreements; and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 the Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of its Equity Interests.
(after giving effect b) Create or suffer to returns onexist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to except for restrictions (i) Consolidated Secured Debt on under the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and Loan Documents, (ii) EBITDA as of the four-Fiscal Quarter period ending permitted under Section 7.11, (iii) under Applicable Law or (iv) in effect on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior Closing Date as shown on Schedule 5.13 to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing DateDisclosure Letter.
Appears in 1 contract
Samples: Credit Agreement (Sanmina Corp)
Distributions; Upstream Payments. Obligors The Borrower will not, and will not permit any of their its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company Borrower may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company Borrower or its Subsidiaries or make payments to employees, officers or directors of the Company Borrower or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 2,500,000 in any Fiscal Year (with unused amounts in any unused amount in a Fiscal Year being added carried over to the amount permitted succeeding calendar years, but not to exceed $5,000,000 of repurchases or redemptions in the immediately succeeding any Fiscal Year);
(d) the Company Borrower may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect effect, in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;; and
(e) other Distributions (other than repurchases or redemptions of Equity Interests or cash distributions to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fholders of Equity Interests) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date15,000,000.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Key Energy Services Inc)
Distributions; Upstream Payments. Obligors will notDeclare or make any Distributions, except (i) Upstream Payments, (ii) Distributions made in connection with the consummation of the Transactions, (iii) Distributions made in connection with and will not permit pursuant to stock option plans or other benefit plans of management or employees of the Loan Parties or any of their Subsidiaries toincluding (A) compensation to (or as directed by) any director (or equivalent) and (B) purchases of stock or stock options of management or employees, declare in each case as have been approved by the applicable board of directors (or makeequivalent), (iv) Distributions by a Borrower to Holdings or agree a Subsidiary of a Borrower to its Loan Party parent and, ultimately, to Holdings to the extent promptly used by Holdings to pay any taxes that are due and payable by Holdings as part of a consolidated, combined, unitary or makesimilar group that includes the Loan Parties or any of their Subsidiaries, directly or indirectly, any Distributions except Upstream Payments, and except:
(av) the Company may declare and pay dividends with respect to its Equity Interests payable solely the New Preferred Stock, the following shall be permitted: (A) any accompanying administrative cash payments made in additional respect of fractional shares when dividend payments are made as ‘payment-in-kind’, (B) any in-kind (non-cash) redemptions of its Equity Interests New Preferred Stock as required when dividend payments are made as ‘payment-in-kind’ (other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with accompanied by the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making administrative replacement of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors New Preferred Stock) and (C) cash Distributions in an aggregate amount not to exceed $5,000,000 10,000,000 in any Fiscal Year Year, so long as the Specified Transaction Conditions applicable to such cash Distribution shall have been satisfied in connection therewith, (with any unused amount in a Fiscal Year being added to the amount permitted vi) other payments not exceeding $10,000,000 in the immediately succeeding Fiscal Year);
aggregate during any fiscal year (dwhich amounts, if not used, may be carried forward for one (1) the Company may repurchase its fiscal year) and (vii) following any initial underwritten public offering of common Equity Interests in connection of Holdings (whether pursuant to an effective registration statement filed with the administration Securities and Exchange Commission or otherwise), provided no Default or Event of its equity-based compensation plans Default shall have occurred and is continuing, or would result thereform, Holdings may declare and pay cash dividends pursuant to any cash dividend plan announced by the Board of Directors of Holdings from time to time in effect in connection time. For purposes of determining compliance with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 10.2.3, in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum event that a proposed Distribution meets the criteria of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at more than one of the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to categories of Distributions described in this Section 10.2.3(e) shall be made in reference to clauses (i) Consolidated Secured Debt through (vii), Borrowers will be permitted to classify such proposed Distribution on the date of such Distribution after giving effect to such Distribution (and its issuance in any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance manner that complies with this Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date10.2.3.
Appears in 1 contract
Samples: Loan and Security Agreement (Cooper-Standard Holdings Inc.)
Distributions; Upstream Payments. Obligors will notNeither SEI nor any Borrower shall, and will shall not permit any of their respective Subsidiaries to, declare or makemake any Distributions, or agree to pay or makeexcept (a) Distributions for the purpose of paying permitted Merger Transaction Costs, directly or indirectly, any Distributions except (b) Upstream Payments, and except:
(a) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event Distributions to SEI for the purpose of Default then exists or would immediately result from paying all costs and expenses incurred by SEI in the making Ordinary Course of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service 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, officers or directors Business in an aggregate amount not to exceed $5,000,000 in 25,000,000 during any Fiscal Year (with any unused amount in a Fiscal Year being added related to the amount permitted in oversight, management, administration and support of the immediately succeeding Fiscal Yearbusiness and affairs of the Obligors and their Subsidiaries and serving as holding company for the Obligors and their Subsidiaries, including direct and indirect costs, compensation and business costs related to employees (including salary, bonuses and health, welfare and other benefits);
, contractors, temporary and other workers, consulting, professional and advisory fees and expenses, taxes and overhead costs and expenses, including rent, equipment, supplies, storage, licenses and other costs; (d) the Company may repurchase its Equity Interests in connection with the administration Distributions to SEI or to any direct or indirect parent company of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned SEI so long as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of either (x) $20,000,000 Borrowers are in compliance with the Negative Covenant Availability Condition (i) for a period of 90 consecutive calendar days prior to any such Distribution and (ii) immediately after giving pro forma effect to returns onsuch Distribution, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to Borrowers (i) are in compliance with the Consolidated Secured Debt on Fixed Charge Coverage Ratio covenant set forth in Section 10.3 (regardless of whether the date Aggregate Availability of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewithBorrowers is then less than the Financial Covenant Availability Condition) and (ii) EBITDA as have pro forma Aggregate Availability of at least 10% of the four-Fiscal Quarter period ending Revolver Commitments (excluding the Fixed Asset Formula Amount on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(bdate thereof), or, prior in each case at the time of and after giving effect to the first date financial statements have been delivered any such Distribution; and (e) payments by SEI to Holdings pursuant to a tax sharing agreement permitted under Section 10.1.2(a) or 10.1.2(b10.2.16(m), and any Distributions made by SEI’s Subsidiaries for the most recent quarterly financial statements publicly disclosed prior sole purpose of allowing SEI to satisfy its payment obligations under tax sharing agreements permitted under Section 10.2.16(m); provided, however that U.S. Obligors may not make such Distributions for the Closing Datepurpose of allowing SEI to satisfy its payment obligations under such tax sharing agreements that relate to future Subsidiaries that are not Obligors or Subsidiaries of Obligors.
Appears in 1 contract
Samples: Loan Agreement (Superior Essex Inc)
Distributions; Upstream Payments. Obligors will notDeclare or make any Distributions, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except (i) Upstream Payments, and except:
; (aii) the Company US Concrete may declare and pay dividends Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
); (ciii) if no Event US Concrete may make Distributions, 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 Default then exists US Concrete and its Subsidiaries or would immediately result from the making rights plans for holders of such Distribution, the Company may repurchase or redeem its Equity Interests owned by Interests; (iv) a Borrower may make payments in cash or issue notes to former employees, officers or directors of such Borrower in connection with the Company redemption or its Subsidiaries or make payments to repurchase of Equity Interests in such Borrower from such former employees, officers or directors of the Company or its Subsidiaries upon termination of employment with such Borrower or service 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 their death or disability of such employees, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added 2,500,000 and provided such notes are subordinate to the amount permitted Obligations in form and substance reasonably acceptable to the immediately succeeding Fiscal Year);
Agent; (dv) the Company Subsidiaries may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients make Distributions ratably with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
their Equity Interests; (e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fvi) Distributions not otherwise permitted by any in respect of fractional shares; (vii) other clause Distributions (including the repurchase or retirement of this Section 10.2.3 in an aggregate amount not warrants existing as of the Initial Closing Date with respect to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (yUS Concrete’s Equity Interests) so long as at all of the time of, Distribution Conditions are satisfied with respect thereto; and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e(viii) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred Distributions in connection therewith) and (ii) EBITDA with US Concrete’s purchase or redemption of its Equity Interests so long as all of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Agent has received financial statements in accordance Stock Redemption Conditions are satisfied with Section 10.1.2(a) or 10.1.2(b)respect thereto, or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.
Appears in 1 contract
Distributions; Upstream Payments. Obligors will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:: US-DOCS\144726423.10
(a) the Company Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(b) each Obligor and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(c) if no Event of Default then exists or would immediately result from the making of such Distribution, the Company Borrower may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company Borrower or its Subsidiaries or make payments to employees, officers or directors of the Company Borrower or its Subsidiaries upon termination of employment or service 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, officers or directors in an aggregate amount not to exceed $5,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to the amount permitted in the immediately succeeding Fiscal Year);):
(d) the Company Borrower may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(fe) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount for all such Distributions made following the Closing Date not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum greater of (xI) $20,000,000 and (after giving effect to returns on, and repayments or discharges of, any such InvestmentsII) plus (y) 25% of EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter; provided that so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio is equal to or less than 3.60 4.00 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flowsuch Distribution shall not be limited in amount. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) and (ii) EBITDA as of the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter for which Administrative Agent has received financial statements in accordance with Section 10.1.2(a) or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Date.
Appears in 1 contract
Samples: Term Loan and Security Agreement (DXP Enterprises Inc)
Distributions; Upstream Payments. Obligors will notDeclare or make any Distributions, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Distributions except Upstream Payments, and except:
(a) the Company Permitted Distributions;
(b) Any Subsidiary may declare and pay dividends with respect or make other distributions ratably to its equity holders;
(c) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, Borrowers may, or Borrowers may make Distributions to Holdings (and Holdings may in turn make distributions to Super Holdco) so that Holdings (or Super Holdco) may, repurchase its Equity Interests owned by current and former officers, directors, consultants, advisors or employees of Holdings, Borrowers or Subsidiaries or make payments to current and former officers, directors, consultants, advisors or employees of Holdings, Borrowers or Subsidiaries (x) in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to any management incentive plan, equity based compensation plan, equity subscription agreement, equity award agreement, shareholders’ or members’ agreement or other similar agreement, plan or arrangement, or (y) in connection with the retention, promotion, separation from service, death or disability of such individuals, in an aggregate amount for this clause (c) not to exceed $5,000,000 in any Fiscal Year;
(d) Borrowers may make Distributions to Holdings (and Holdings may in turn make Restricted Payments to Super Holdco) in order to allow Holdings and/or Super Holdco to (x) pay Holdings and/or Super Holdco’s administrative expenses and corporate overhead, franchise fees, public company costs (including SEC fees and auditing fees) and customary director fees in an aggregate amount not to exceed $2,000,000 in any calendar year, (y) pay premiums and deductibles in respect of directors and officers insurance policies and excess liability policies obtained from third-party insurers, (z) pay Tax liabilities attributable to Holdings and its subsidiaries in an amount not to exceed the amount of such Taxes that would be payable by Spectrum and its Subsidiaries on a stand-alone basis (if Holdings were a corporation and parent of a consolidated group including its Subsidiaries); provided that (i) any payments made pursuant to this clause (z) in any period that are not otherwise deducted in calculating Consolidated Net Income shall be deducted in calculating Consolidated Net Income for such period and (ii) all Distributions made to Super Holdco or Holdings pursuant to this clause (d) shall be used by Super Holdco or Holdings, as the case may be, for the purposes specified herein within twenty (20) days of the receipt thereof;
(e) Spectrum and each Subsidiary may declare and make dividend payments or other distributions payable solely in additional shares of its the common stock or other common Equity Interests (other than Disqualified Capital Stock)of such Person;
(bf) each Obligor Spectrum and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue issuance of new common Equity InterestsInterests of such Person (other than any such issuance to such Borrower or Subsidiary);
(cg) if no Event Spectrum may make cash payments in lieu of Default then exists or would immediately result from the making of such Distribution, the Company may repurchase or redeem its Equity Interests owned by employees, officers or directors of the Company or its Subsidiaries or make payments to employees, officers or directors of the Company or its Subsidiaries upon termination of employment or service issuing fractional shares in connection with the exercise of stock optionswarrants, stock appreciation rights options or similar equity incentives other securities convertible into or equity based incentives pursuant exchangeable for Equity Interests of Spectrum or Subsidiaries so long as no Event of Default exists or would result therefrom; and
(h) Spectrum may make other payments to management incentive plans or Holdings otherwise restricted by this Section 10.2.4 (and Holdings may in connection with the death or disability of turn make such employees, officers or directors Distributions to Super Holdco) in an aggregate amount not to exceed $5,000,000 40,000,000 in any Fiscal Year (with any unused amount in a Fiscal Year being added to Year, provided that, at the amount permitted in the immediately succeeding Fiscal Year);
(d) the Company may repurchase its Equity Interests in connection with the administration of its equity-based compensation plans from time to time in effect in connection with the repurchase of Equity Interests from employees, directors and other such recipients to satisfy federal, state or local tax withholding obligations of such employeespayment, directors and other recipients with respect to income deemed earned as the result of options, stock grants or other awards made under such plans;
(e) to the extent constituting a Distribution, each Obligor and each Subsidiary may prepay or repay Seller Financing permitted pursuant to Section 10.2.1(h); and
(f) Distributions not otherwise permitted by any other clause of this Section 10.2.3 in an aggregate amount not to exceed (when made), when taken together with any Investments made pursuant to Section 10.2.4(k), the sum of (x) $20,000,000 (after giving effect to returns on, and repayments or discharges of, any such Investments) plus (y) so long as at the time of, and immediately after giving effect to such Distribution, the Secured Leverage Ratio Availability is equal to or not less than 3.60 to 1.00 on a pro forma basis, an amount equal to Cumulative Retained Excess Cash Flow. Pro forma basis referred to in this Section 10.2.3(e) shall be made in reference to the greater of (i) Consolidated Secured Debt on the date of such Distribution after giving effect to such Distribution (and any Debt incurred in connection therewith) $100,000,000 and (ii) EBITDA as the amount that is equal to 33% of the four-Fiscal Quarter period ending on aggregate Revolver Commitments at such time and (y) no Event of Default exists at the last day time of the most recent Fiscal Quarter for which Agent has received financial statements in accordance with Section 10.1.2(a) such payment or 10.1.2(b), or, prior to the first date financial statements have been delivered pursuant to Section 10.1.2(a) or 10.1.2(b), the most recent quarterly financial statements publicly disclosed prior to the Closing Datewould result therefrom.
Appears in 1 contract
Samples: Loan and Security Agreement (Spectrum Brands, Inc.)
