Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that: (a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur); (b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below; (c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and (d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.
Appears in 4 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Dividends and Redemptions. Each The Borrower and Guarantor its Subsidiaries shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock of such the Borrower or Guarantor any of its Subsidiaries now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any the Borrower or Guarantor and its Subsidiaries may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);,
(b) Borrowers the Borrower and Guarantors its Subsidiaries may pay dividends to the extent permitted in Section 9.12 6.11(b) below;,
(c) any Subsidiary of a the Borrower or Guarantor may pay dividends to a Borrower; the Borrower or any wholly-owned Subsidiary, and
(d) Borrowers and Guarantors the Borrower may pay dividends or make distributions to the Parent to repurchase Capital Stock consisting of common stock held by the Parent issued to employees pursuant to of the Parent, the Borrower or any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, their respective Subsidiaries; provided, that, as to any such repurchasedividend or distribution, each of the following conditions is satisfied: :
(i) as of the date of the payment for such repurchase dividend or distribution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, ,
(ii) such repurchase shall be paid with funds legally available therefor, (iii) such dividend or distribution and the proposed repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such the Borrower or Guarantor any of its Subsidiaries is a party or by which such the Borrower or Guarantor or any of its Subsidiaries or their property properties are bound, and and
(iviii) the aggregate amount of all payments for such repurchases dividends or distributions in any calendar fiscal year (when taken together with the aggregate amount of loans made by the Borrower to the Parent in accordance with Section 6.9(j)) shall not exceed $250,0002,000,000 (net of cash proceeds of any sales of Capital Stock to other employees and excluding the cancellation of stock purchase notes),
(e) the Borrower may pay dividends and make distributions to the Parent to allow the Parent to repurchase the Capital Stock of the Parent or to pay dividends thereon; provided that, (i) on the date of the payment of such dividends or the making of such distributions, no Default or Event of Default has occurred and is continuing or would result after giving effect to such dividends or distributions, (ii) the Borrower is in pro forma compliance with the Leverage Ratio set forth in Section 6.23 after giving effect to such dividend or distribution and any Indebtedness incurred in connection therewith, and (iii) the aggregate amount of all such dividends and distributions shall not exceed $10,000,000 less the aggregate amount of investments made pursuant to Section 6.9(k) during the term of this Agreement; provided that notwithstanding the foregoing to the contrary, the aggregate amount of dividends and distributions permitted under this clause (e) shall be increased to $50,000,000 less the aggregate amount of investments made pursuant to Section 6.9(k) during the term of this Agreement, if at the time such dividend or distribution is made (and after giving pro forma effect to such dividend or distribution and any Indebtedness incurred in connection therewith) the Leverage Ratio as of the date that such dividend or distribution is made is less than or equal to 1.50 to 1.00, and
(f) the Borrower may make dividends and distributions to the Parent to pay Parent Overhead Expenses.
Appears in 2 contracts
Samples: Credit Agreement (Hhgregg, Inc.), Credit Agreement (Hhgregg, Inc.)
Dividends and Redemptions. Each No Borrower and or Guarantor shall notshall, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) any Borrower may pay dividends to any other Borrower and any Guarantor may pay dividends to any Borrower;
(c) Borrowers and Guarantors may pay (directly or indirectly) dividends to NY&Co to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends required to a Borrower; and
(d) Borrowers and Guarantors may permit NY&Co to repurchase Capital Stock consisting of common or preferred stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, ; provided, that, as to any such repurchase, each of the following conditions is satisfied: (iA) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (iiB) such repurchase shall be paid with funds legally available therefor, and (iiiC) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor Xxxxxx is a party or by which such Borrower or Guarantor Xxxxxx or its or their property properties are bound, and (ivD) Borrowers have Excess Availability plus Qualified Cash of at least the Specified Excess Availability Amount after giving effect to such payments;
(d) Borrowers and Guarantors may pay dividends (directly or indirectly) to NY&Co for annual management fees and cost reimbursement payable to Bear Xxxxxxx Merchant Manager II, LLC, pursuant to the terms of the Advisory Services Agreement dated as of November 27, 2002, as in effect on the date hereof, so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) such fees do not exceed an aggregate annual amount of up to the greater of $750,000 or two and one-half percent (2.5%) of the EBITDA for the fiscal year to which such fees relate;
(e) Borrowers and Guarantors may pay dividends (directly or indirectly) to NY&Co for investments made by NY&Co in connection with the purchase of assets or Capital Stock of a Person engaged in a business activity similar to or related to the business of Borrowers and Guarantors, so long as (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) Borrowers have Excess Availability plus Qualified Cash of at least the Specified Excess Availability Amount after giving effect to such payment of dividend and (iii) Borrowers’ trailing Average Compliance Excess Availability plus Qualified Cash for the fiscal quarter preceding the date of any such investment is greater than Specified Excess Availability Amount;
(f) Borrowers and Guarantors may pay dividends (directly or indirectly) to NY&Co, or any other corporation that is the parent of any affiliated, consolidated, combined or unitary group of corporations of which Borrowers and Guarantors are members, in an amount equal to the sum of (i) the aggregate amount federal, state and local income tax liability of all such group that is attributable to Borrowers and Guarantors and their respective Subsidiaries and (ii) amounts owed by NY&Co to the independent trade creditors, service providers, employees and independent directors of NY&Co (other than Bear Xxxxxxx Merchant Manager II, LLC), for the services or goods (of the types set forth on Schedule 9.11(f)) hereto supplied by such independent trade creditors, service providers, employees and independent directors which have conferred a direct benefit to Borrowers, Guarantors and/or their respective Subsidiaries, plus an arms-length cost plus fees (not to exceed one and three-quarters of one percent (1.75%) of the amounts payable thereof) to NY&Co for its services rendered in arranging and processing payments for those goods and services; and
(g) Borrowers and Guarantors may pay dividends (directly or indirectly) to NY&Co so long as (i) no Default or Event of Default then exists or would occur after giving effect to such repurchases dividend, (ii) Excess Availability plus Qualified Cash during the one hundred twenty (120) consecutive day period immediately preceding such dividend equals or exceeds the Specified Excess Availability Amount; and (iii) the Existing Term Loan and all Obligations related thereto have been paid in any calendar year shall not exceed $250,000full.
Appears in 2 contracts
Samples: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor No Loan Party shall, or shall notpermit any of its Subsidiaries to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of any such Borrower or Guarantor Person now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower Loan Party or Guarantor any Subsidiary of any Loan Party may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Stock, in each case for consideration in the form of shares of common stock or equity interests (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)) and such shares (except in the case of Parent’s Capital Stock) are pledged to the Agent if required under the terms of any Financing Agreement;
(b) Borrowers the Loan Parties and Guarantors their Subsidiaries may pay dividends to the extent permitted in clause (c) and Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor Parent may pay dividends to the holder of a Borrowermajority of such Subsidiary’s Capital Stock so long as such holder is the Parent or a Subsidiary of Parent; and
(d) Borrowers and Guarantors Parent may repurchase Capital Stock consisting of common stock held by directors or employees pursuant to the Stockholders Agreement and any employee or other stock ownership plan or arrangement thereof upon the resignation, termination, retirement or death of any such employee in accordance with the provisions of such planagreements, plan or arrangement, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate in any material respect any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor Parent is a party or by which such Borrower or Guarantor Parent or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,0001,000,000.
Appears in 2 contracts
Samples: Loan and Security Agreement (Remy International, Inc.), Loan and Security Agreement (Delco Remy International Inc)
Dividends and Redemptions. Each Borrower and Guarantor Guarantors shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or any Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or any Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers Borrower and Guarantors Guarantor may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or any Guarantor may pay dividends to a Borrower; and
(d) Borrowers Borrower and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar fiscal year (when taken together with the aggregate amount of loans made by Borrower to Parent in accordance with Section 9.10 (j) hereof) shall not exceed $250,0001,500,000 (net of cash proceeds of any sales of Capital Stock to other employees and excluding the cancellation of stock purchase notes), except, that, the Borrower may repurchase the Capital Stock of Borrower owned by Xxxxxx X. May upon his death, retirement or termination of employment in accordance with the terms of the Stockholders Agreement, dated the date hereof, by and among FS Equity Partners V, L.P., Xxxxx Investment Corporation, LLC, Xxxxx X. Xxxxxxxxxxx, Xxxxx Xxxxxxx Xxxxxxxxxxx, Xxxxxx X. May and Borrower (as in effect on the date hereof) provided, that, each of the following conditions is satisfied or waived in the determination of Agent: (A) as of the date of any such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) as of the date of such payment and after giving effect thereto, Excess Availability shall be not less than $10,000,000, and (C) the aggregate amount of payments made in respect of such repurchase shall not exceed $7,000,000.
Appears in 2 contracts
Samples: Loan and Security Agreement (HHG Distributing, LLC), Loan and Security Agreement (Hhgregg, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall notnot through any manner or means, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstandingdeclare, order, pay, make or set aside or otherwise deposit or invest any sums for such purposeapart, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do declare, order, pay, make or set apart, any of the foregoing, sum for any Restricted Payment except that:
(a) any Borrower or Guarantor (other than Parent) may declare and pay such dividends make Restricted Payments to any other Borrower or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)Guarantor;
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor Parent may pay dividends to a Borrowermake Restricted Payments in cash, from funds legally available therefor; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as with respect to any each such repurchase, each of the following conditions is satisfiedRestricted Payment: (i) Agent shall have received at least five (5) Business Days prior written notice (or such lesser notice period as to which Agent may agree) thereof, (ii) as of the date of any such payment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than the payment for amount equal to thirty-five (35%) percent of the Maximum Credit, and (iii) as of the date of any such repurchase Restricted Payment and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and
(d) Parent may make Restricted Payments in the form of Capital Stock of Parent (other than Disqualified Capital Stock); and
(e) Parent may repurchase Capital Stock of Parent deemed to occur upon the cashless exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants; provided, (ii) such repurchase shall be paid with funds legally available thereforthat, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such no Borrower or Guarantor is a party shall pay, or by which be required to pay, any amounts in respect of any such repurchase other than in the form of Capital Stock of Parent (other than Disqualified Capital Stock). Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, make or its or their property are boundpay any Restricted Payment to any Petro Company (except for a Restricted Payment in the form of capital stock other than Disqualified Capital Stock) unless, as of the date of any such Restricted Payment, no Default of Event of Default shall have occurred and (iv) the aggregate amount of all payments for such repurchases in any calendar year be continuing and Excess Availability plus Unrestricted Cash shall not exceed $250,000be less than an amount equal to thirty-five (35%) percent of the Maximum Credit.
Appears in 2 contracts
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any of their respective Subsidiaries to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor (or Subsidiary) now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
EXCEPT (a) any Subsidiary of a Borrower or Guarantor may declare and pay dividends to such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
Borrower; (b) Borrowers and Guarantors a Borrower may pay dividends to the extent permitted in Section 9.12 below;
; (c) any Subsidiary of a Borrower or Guarantor Waxman Industries other than Borrowers may pay dividends to a Borrowertheir respective parent corporation; and
and (d) Borrowers and Guarantors any Borrower, Guarantor or any of their respective Subsidiaries may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the terminationfor cash consideration, retirement or death of any such employee in accordance with the provisions of such planPROVIDED, provided, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, ; (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000500,000.
Appears in 2 contracts
Samples: Loan and Security Agreement (Waxman Industries Inc), Loan and Security Agreement (Waxman Industries Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor such Subsidiary now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:except
(a) in any Borrower or Guarantor may declare and pay such dividends or redeemcase, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held or options exchangeable for common stock,
(b) any Subsidiary of Borrower (i) may pay any dividends to Borrower or (ii) make other payments or distributions on its Capital Stock owned by employees pursuant to Borrower or any employee stock ownership plan thereof upon the termination, retirement or death Subsidiary of any such employee in accordance with the provisions Borrower; and
(c) Borrower may repurchase its Capital Stock consisting of such plancommon stock, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default or any act, condition or event which, with notice or passage of time or both, would constitute an Event of Default, shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation applicable to Borrower or the terms of any indentureMaterial Contract, agreement or undertaking (iv) after giving effect to which any such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are boundrepurchase, Excess Availability shall be not less than $20,000,000, and (ivE) the aggregate amount of all payments for such repurchases in any calendar year during the term of this Agreement shall not exceed $250,0005,000,000.
Appears in 2 contracts
Samples: Loan and Security Agreement (Congoleum Corp), Loan and Security Agreement (American Biltrite Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower Borrower, Guarantor or Guarantor Subsidiary now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Subsidiary of a Borrower may pay dividends to such Borrower or Guarantor another Subsidiary and any Subsidiary of a Borrower (other than a Borrower) may declare and pay such dividends redeem or redeem, retire, defease, purchase or otherwise acquire repurchase any shares of any class of its Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)by making payments to a Borrower;
(b) Borrowers and Guarantors any Borrower or Guarantor may pay dividends to the extent permitted in Section 9.12 belowor may redeem or repurchase any of its Capital Stock for consideration consisting of common stock;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors or may redeem or repurchase any of its Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planStock, provided, that, as to any payment of such repurchase, dividend or for such redemption or repurchase each of the following conditions is satisfied: :
(i) as of the date of the such payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid made with funds legally available therefor, ,
(iiiii) such dividend or redemption or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such a Borrower or Guarantor is a party or by which such a Borrower or Guarantor or its or their property properties are bound,
(iii) as of the date of the payment of such dividend or redemption or repurchase and after giving effect thereto, and no Default or Event of Default shall exist or have occurred; and
(iv) in the aggregate amount case of all payments for redemptions and repurchases, as of the day of the redemption or repurchase and after giving effect thereto, the Excess Availability, as of the date of any such repurchases in any calendar year payment and after giving effect thereto, shall be not exceed less than $250,00025,000,000.
Appears in 2 contracts
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack), Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common Capital Stock (other than capital stock described in clause (so long as after giving effect thereto no Change e) of Control or other Default or Event the definition of Default shall exist or occur“Indebtedness”);
(b) Borrowers and Guarantors may pay dividends or make distributions to the extent of payments permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends or make distributions (directly or indirectly) to a Borrower; andBorrower or Guarantor;
(d) Borrowers Parent may pay cash dividends to its shareholders once per fiscal quarter in an amount not to exceed the lesser of (x) 40% of Excess Cash Flow for the prior fiscal quarter and Guarantors may repurchase Capital Stock consisting (y) 30% of common stock held by employees pursuant to any employee stock ownership plan thereof upon EBITDA for the termination, retirement or death of any such employee in accordance with the provisions of such planprior fiscal quarter, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect theretoRequired Conditions have been satisfied, (ii) no Default or Event of Default shall exist or have occurred and be continuingcontinuing as of the date of any such payment and after giving effect to such payment, (ii) such repurchase shall be paid with funds legally available therefor, and (iii) 60% of Excess Cash Flow for such prior fiscal quarter minus the Required Amortization Amount is positive;
(e) [reserved];
(f) the Loan Parties may make Permitted Tax Distributions so long as no Event of Default pursuant to Sections 10.1(a)(i), 10.1(g) or 10.1(h) has occurred and is continuing or would result therefrom; and
(g) Borrowers and Guarantors may repurchase (or may pay dividends or make distributions to Parent, and Parent may make further distributions thereon, in each case to permit such repurchase) Capital Stock of Parent, Ultimate Parent or any Person that owns, directly or indirectly, 100% of the Capital Stock of Parent, including Capital Stock to be repurchased pursuant to any share repurchase agreement or similar agreement (which shall include, for the avoidance of doubt, the Convertible Note Hedge and Warrant Documents ) and Capital Stock held by or to be issued to current or former employees, directors and officers pursuant to or in connection with any employee stock ownership, option or other equity compensation plan thereof or pursuant to any employment or consulting arrangement or equity subscription agreement, shareholders agreement or similar agreement in an aggregate amount not violate to exceed $1,000,000 in any law fiscal year, so long as no Default or regulation or Event of Default shall have occurred and be continuing as of the terms date of any indenture, agreement or undertaking such payment and after giving effect to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases payment; provided that no Intellectual Property shall be included in any calendar year shall not exceed $250,000such dividends, distributions or payments made pursuant to this Section 9.11.
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor Guarantors shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or any Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or any Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers Borrower and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or any Guarantor may pay dividends to a Borrower; andBorrower or any Guarantor;
(d) Borrowers Borrower and Guarantors may pay dividends or make distributions to Parent to repurchase Capital Stock consisting of common stock held by Parent issued to employees pursuant to of Parent, Borrower or any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, their respective Subsidiaries; provided, that, as to any such repurchasedividend or distribution, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase dividend or distribution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such dividend or distribution and the proposed repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or any Guarantor is a party or by which such Borrower or such Guarantor or its or their property are bound, and (iviii) the aggregate amount of all payments for such repurchases dividends or distributions in any calendar fiscal year (when taken together with the aggregate amount of loans made by Borrower to Parent in accordance with Section 9.10 (j) hereof) shall not exceed $250,0002,000,000 (net of cash proceeds of any sales of Capital Stock to other employees and excluding the cancellation of stock purchase notes);
(e) Borrower may pay dividends and make distributions to Parent to allow Parent to repurchase the Capital Stock of Parent or to pay dividends thereon; provided, that, (i) on date of the payment of such dividends or the making of such distributions, no Default or Event of Default has occurred and is continuing and no Default or Event of Default would result after giving effect to such dividends or distributions, (ii) at the time such dividend is paid or distribution is made, the Leverage Ratio is less than or equal to 3.00 to 1.00 (after giving pro forma effect to such dividend or distribution and any Indebtedness incurred in connection therewith), (iii) the aggregate amount of all such dividends and distributions shall not exceed $10,000,000 less the aggregate amount of investments made pursuant to Section 9.10(k) hereof during the term of this Agreement; provided that notwithstanding the foregoing to the contrary, the aggregate amount of dividends and distributions permitted under this subsection (e) shall be increased to $50,000,000 less the aggregate amount of investments made pursuant to Section 9.10(k) hereof during the term of this Agreement, if at the time such dividend is paid or distribution is made (and after giving pro forma effect to such dividend or distribution and any Indebtedness incurred in connection therewith) the Leverage Ratio as of the date that such dividend or distribution is made is less than or equal to 1.50 to 1.00, and
(f) Borrower may pay dividends and make distributions to Parent to pay Parent Overhead Expenses.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock capital stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except except, that:
(a) any Subsidiary of Borrower or Guarantor may declare and pay such any dividends or redeem, retire, defease, purchase make any other distributions to its shareholders in respect of shares of any class of capital stock; and
(b) Borrower may declare and pay any dividends or otherwise acquire make any other distributions to its shareholders in respect of shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planStock, provided, that, as to any such repurchase, each of the following conditions is satisfied: , as determined in good faith by Agent:
(i) no Event of Default shall have occurred and be continuing and such declaration and payment of dividends or other distribution to its shareholders shall not be an event which is, or after notice or lapse of time or both, would be, an event of default under the terms of any indebtedness of Borrower or its Subsidiaries,
(ii) immediately before and immediately after giving effect to such transaction on a pro forma basis, Borrower could incur $1.00 of additional indebtedness (other than Permitted Indebtedness as such term is defined in the Senior Note Indenture) under the terms of Section 10.8 of the Senior Note Indenture,
(iii) on the date of the any such payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase Excess Availability shall be paid with funds legally available therefornot less than $5,000,000, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and and
(iv) the aggregate amount of all such dividends or other such distributions to its shareholders declared or made after the date hereof shall not exceed the sum of: (A) fifty (50%) percent of the aggregate cumulative Consolidated Net Income of Borrower accrued on a cumulative basis during the period beginning on the first day of Borrower's fiscal quarter commencing prior to the date hereof and ending on the last day of Borrower's last fiscal quarter ending prior to the date of the payment of the dividends or other such distributions to its shareholders (or, if such aggregate cumulative Consolidated Net Income shall be a loss, minus one hundred (100%) percent of such loss), plus (B) the aggregate net cash proceeds received after the date hereof by Borrower as capital contributions to Borrower (other than from any of its Subsidiaries), plus (C) the aggregate net cash proceeds received after the date hereof by Borrower from the issuance or sale (other than to any of its Subsidiaries) of its shares of Qualified Capital Stock or any options, warrants or rights to purchase such shares of Qualified Capital Stock of Borrower (except, in each case, to the extent such proceeds are used to purchase, redeem or otherwise retire Capital Stock or other indebtedness), plus (D) the aggregate net cash proceeds received after the date hereof by Borrower (other than from any of its Subsidiaries) upon the exercise of any options or warrants to purchase shares of Qualified Capital Stock of Borrower, plus (E) the aggregate net cash proceeds received after the date hereof by Borrower from debt securities or Redeemable Capital Stock that have been converted into or exchanged for Qualified Capital Stock of Borrower, to the extent such debt securities or Redeemable Capital Stock are originally sold for cash, plus the aggregate net cash proceeds received by Borrower at the time of such conversion or exchange, provided, that, any such aggregate cash proceeds used by Borrower to redeem or repurchase Senior Notes shall not be included in the amounts provided for herein;
(c) Borrower may declare and pay dividends or make other distributions to Parent in respect of the shares of Capital Stock of Borrower owned by Parent to permit Parent to pay Federal, State and local income taxes applicable to Borrower and its Subsidiaries; provided, that, (i) such payments shall not exceed the lesser of (A) actual payments by Parent for Federal, State and local income taxes and (B) the amount of taxes which would have been payable by Borrower if it were the parent of a separate affiliated group of which its Subsidiaries were members and (ii) the proceeds of such dividends or other distributions shall be used by Parent to pay such taxes within five (5) business days after the receipt of such proceeds by Parent;
(d) Borrower may declare and pay dividends or make other distributions to Parent in respect of the shares of Capital Stock of Borrower owned by Parent to pay franchise taxes and reasonable administrative expenses (including reasonable professional fees and expenses) that benefit Borrower or its Subsidiaries; provided, that, (i) no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred, (ii) the aggregate amount of all such franchise taxes and administrative expenses paid in any fiscal year of Borrower shall not exceed $130,000, (iii) such administrative expenses shall not include any amounts for management services rendered by Mxxxxx Xxxxx Xxxxxxx & Axx, Inc., or its Affiliates or management services provided by third parties which are duplicative of any such services rendered by Mxxxxx Xxxxx Xxxxxxx & Ahn, Inc., or its Affiliates for the benefit of Borrower or a Subsidiary of Borrower, and (iv) the proceeds of such dividends or other distributions shall be used by Parent to pay such taxes and expenses within five (5) business days after the receipt of such proceeds by Parent;
(e) Borrower may declare and pay dividends or make other distributions to Parent in respect of the shares of Capital Stock of Borrower owned by Parent to permit the repurchase of Parent Common Stock or options to purchase Parent Common Stock from employees of Borrower (other than employees who are Affiliates or employees of MLGAL Partners L.P. (the sole general partner of MLGA Fund II, L.P.) or any successor partnership into which it is reorganized and its Affiliates); provided, that, (i) no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (ii) such dividends or other distributions shall be in the form of cash or Employee Notes and the amount of cash expended for all such repurchases in any calendar fiscal year of Borrower shall not exceed $250,000the Annual Cash Amount for such fiscal year plus the unexpended Annual Cash Amount, if any, for the immediately preceding fiscal year (it being understood that a repurchase in a specified fiscal year shall be charged first to the unexpended Annual Cash Amount, if any, pertaining to the preceding fiscal year and then to the Annual Cash Amount, if any, pertaining to such fiscal year), (iii) each such repurchase is occasioned by the death, permanent disability or termination of employment of the holder of Parent Common Stock or options to purchase Parent Common Stock pursuant to the Subscription Agreement, (iv) such repurchase occurs during the time during which Borrower has an option to repurchase such shares under such Subscription Agreement and the amount of the repurchase price specified in such Subscription Agreement (subject to any adjustment to such purchase price thereunder resulting from a future recapitalization (or transaction in the nature of a recapitalization) of the Borrower), (v) if Employee Notes have been issued in connection with the repurchase of Parent Common Stock or options to purchase Parent Common Stock in accordance with the foregoing, any unexpended Annual Cash Amount that is available to the Borrower for the payment of dividends or other distributions to Parent pursuant to this Section 10.11(e) may be used to repay such Employee Notes (without any prepayment premium), and the Annual Cash Amount available to the Borrower for the payment of such distributions shall be reduced by the amount of the principal paid in connection with the prepayment of such Employee Notes, and (vi) the proceeds of such dividends or other distributions are used by Parent to repurchase Parent Common Stock or options to purchase Parent Common Stock as provided above within five (5) Business Days after the receipt of such proceeds by Parent.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any other Credit Party (other than any Excluded Subsidiary) to, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock of such Borrower or Guarantor Credit Party now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor Credit Party may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occuroccur and be continuing);
(b) Borrowers and Guarantors any Credit Party may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors Credit Party may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan, restricted stock or incentive stock plan or other similar plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor any Credit Party is a party or by which such Borrower or Guarantor any Credit Party or its or their property are is bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,0005,000,000;
(d) any Credit Party may make any redemption of securities with the proceeds received from a substantially concurrent issue of new shares of Capital Stock;
(e) any Credit Party may repurchase Capital Stock deemed to occur upon the exercise of options or warrants if such Capital Stock represents all of the exercise price thereof;
(f) any Credit Party may make payments of cash in lieu of issuance of fractional shares upon the exercise of warrants or upon the conversion or exchange of, or issuance of Capital Stock in lieu of cash dividends on any Capital Stock; and
(g) Parent Guarantor may (i) pay cash dividends or distributions to its shareholders, (ii) repurchase or buyback any of its Capital Stock and/or warrants and (iii) repurchase any of its Indebtedness; provided, that at the time of such dividend, distribution or repurchase and after giving effect thereto, (A) no Default or Event of Default shall have occurred and be continuing, (B) Borrowers’ Excess Availability plus Qualified Cash shall not be less than $30,000,000; (C) Borrowers’ Excess Availability plus Qualified Cash shall be projected, to the Agent’s reasonable satisfaction, to be $30,000,000 or more for 90 consecutive days following the consummation of such dividend, distribution or repurchase, and (D) the aggregate amount of all such dividends, distributions and repurchases permitted by this Section 9.11(g) shall not exceed $50,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Jazz Technologies, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor Borrowers shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock capital stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor that URI may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any to UGI and UGI (a) may redeem shares of its capital stock from persons who withdraw or are expelled as Members, (b) may redeem a pro rata share of its capital stock from persons who remain Members but who close less than all of their stores as set forth below; and (c) may redeem the number of shares in excess of 4,000 held by any class Member, provided in each case that no Event of Capital Stock for consideration Default has occurred and is then continuing, such shares are redeemed at Book Value as provided in UGI's current bylaws, and the form redemption price is paid over the maximum period allowed by such bylaws. The pro rata share of capital stock that UGI may redeem under subsection (b) above shall be equal to the product of the total number of shares of common UGI stock held by the relevant Member multiplied by a fraction, the numerator of which is the gross sales from the store(s) being closed by that Member and the denominator of which is the gross sales from all of that Member's stores, including the stores to be closed, in each case during the full twelve (so long as 12) calendar months preceding the redemption. Notwithstanding the foregoing provisions of this Section 9.11, UGI may pay patronage dividends to its Members based upon the respective amounts of net income generated by sales to such Members, provided that no Event of Default has occurred and is then continuing, provided further that after giving effect thereto to all such patronage dividend payments, Borrowers have no Change less than $10,000,000 of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers Excess Availability; and Guarantors may pay provided further that no patronage dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall will be paid with funds legally available therefor, (iii) such repurchase shall not violate any law in or regulation or for the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar fiscal year shall not exceed $250,000ending September 1998.
Appears in 1 contract
Samples: Loan and Security Agreement (United Grocers Inc /Or/)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occurhave occurred and be continuing);
(b) Borrowers and Guarantors may pay dividends to the extent or make distributions in respect of payments permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends or make distributions to a Borrower; ;
(d) Vitamin Shoppe may pay cash dividends to Parent (and Parent may in turn, and in a like amount pay cash dividends to its shareholders) from legally available funds therefor, provided, that,
(i) so long as the Senior Secured Notes are outstanding, Agent shall have received a certificate of the chief financial officer or chief executive officer of Administrative Borrower certifying to Agent and Lenders that the conditions set forth in Section 4.07 of the Senior Secured Note Indenture (as in effect on the date hereof) with respect to the making of a Restricted Payment (as such term is defined in the Senior Secured Note Indenture) have been satisfied,
(ii) Excess Availability (based on the most recent calculation of the Borrowing Base prior to the date of such dividend) shall have been not less than $10,000,000 as of the date of such dividend payment and after giving effect to such dividend payment and immediately prior to such payment, and
(diii) no Default or Event of Default shall have occurred and be continuing as of the date of the acquisition or any payment in respect thereof and after giving effect to the acquisition or such payment,
(e) Borrowers and Guarantors may repurchase (or may pay dividends or make distributions to Parent to permit Parent to so repurchase Capital Stock consisting of common stock held by employees current or former employees, directors and officers pursuant to any employee stock ownership or option plan thereof upon the terminationor pursuant to any employment or consulting arrangement or equity subscription agreement, retirement shareholders agreement or death of any such employee in accordance with the provisions of such plansimilar agreement, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed (A) $250,0001,000,000 (with such amounts not used in any calendar year being carried forward to the next calendar year, provided, that, on the date of any subsequent repurchase and after giving effect thereto, Excess Availability is not less than $10,000,000 based on the most recent calculation of the Borrowing Base), plus (B) the sum of (1) the amount received in cash from substantially contemporaneous sales of Capital Stock of Parent to other Persons during such calendar year plus (2) the cash proceeds of key man life insurance received by Borrowers during such calendar year, plus (C) if, at the time of such repurchase, Excess Availability is not less than $10,000,000 based on the most recent calculation of the Borrowing Base immediately prior to and after giving effect to such repurchase, $1,500,000 in any calendar year (with such amounts not used in any calendar year being carried forward to the next calendar year), and
(f) Parent may declare or pay any cash dividends from legally available funds therefor on account of any shares of class of any Capital Stock of Parent now or hereafter outstanding, or redeem, retire, defease repurchase or otherwise acquire any shares of Capital Stock, or set aside or otherwise deposit or invest any sums for such purpose, provided, that, as of the date of the payment of any cash dividend and after giving effect thereto, no Event of Default shall have occurred and be continuing.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except thatEXCEPT THAT:
(a) any Borrower such Borrower, Guarantor or Guarantor Subsidiary may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occurControl);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, providedPROVIDED, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000200,000 (the "Annual Limit"), EXCEPT THAT, repurchases may be made in excess of the Annual Limit, PROVIDED, THAT, each of the following conditions is satisfied in the determination of Lender: (A) as of the date of such repurchase and after giving effect thereto, the Excess Availability of Borrowers shall be not less than $4,000,000, (B) as of the date of any such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing and (C) the aggregate amount for all such repurchases (including for purposes of this calculation those made within the Annual Limit) in any calendar year shall not exceed $500,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Little Switzerland Inc/De)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, foregoing except that:
that (a) any Subsidiary of a Borrower may pay dividends to such Borrower; (b) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
; (c) any Subsidiary Borrower, Guarantor or any of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors their respective Subsidiaries may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000; and (d) Huffy may, on the date hereof, pay a dividend, in respect of common stock of Huffy which had been declared but not paid as of July, 1999, provided, that, (i) such dividend shall be paid on the date hereof and (ii) the aggregate amount of all payments in respect of such dividend shall not exceed $860,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000100,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoingforegoing without prior written approval from Lender,, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors Borrower may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any of their respective Subsidiaries to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor (or Subsidiary) now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Subsidiary of a Borrower may pay dividends to such Borrower; (b) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
; (c) any Subsidiary of a Borrower or Guarantor PAI other than Borrowers may pay dividends to a Borrowertheir respective parent corporation; and
(d) Borrowers and Guarantors any Borrower, Guarantor or any of their respective Subsidiaries may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000US$500,000, plus the amount by which US$500,000 exceeds such repurchases in each of the immediately preceding two (2) years, but in no event shall the aggregate amount of all payments for such repurchases in any calendar year exceed US$1,500,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Pioneer Americas Inc /Tx)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; except, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(c) Bluegreen Corporation may pay Bluegreen Dividends, provided that Woodbridge Holdings is paid its proportionate share;
(d) Borrowers and Guarantors Parent may pay dividends on its outstanding five percent (5%) Cumulative Preferred Stock;
(e) any Borrower may redeem, repurchase or otherwise acquire any shares of any class of Capital Stock funded with a Loan for Stock Buy Back Purposes;
(f) Parent may from time to time pay cash dividends on or declare a stock split in respect of its outstanding shares of Capital Stock or may repurchase outstanding shares of Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, Stock; provided, that, as to any such repurchase, each of the following conditions is satisfied: :
(i) as of the date of the payment for any such repurchase dividend or repurchase, and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, ;
(ii) such repurchase shall be paid with funds legally available therefor, (iii) such dividend or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound; and
(iii) such dividend or repurchase shall be paid out of legally available funds therefor.
(g) for so long, and as any Borrower is a member of a group filing a consolidated, combined, unitary or similar tax return with any direct or indirect parent of such Borrower, Borrowers may make payments to such direct or indirect parent in respect of a reasonable estimate of the allocable portion of the consolidated, combined, unitary or similar income taxes of such group that are attributable to the income of such Borrower and/or any Subsidiaries thereof (ivto the extent such taxes are not payable directly by any such Borrower or any of their respective Subsidiaries) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.("Tax Payments"). 4833-7494-6387.12 45083/0017 03/0202018
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except thatEXCEPT THAT:
(a) any such Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occurhave occurred and be continuing);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay any dividends to a Borrower; andsuch Borrower or Guarantor and Borrowers and Guarantors may pay dividends to Parent;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, providedPROVIDED, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Thane International Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors Borrower may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, ; (ii) such repurchase shall be paid with funds legally available therefor, therefore; (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, ; and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000200,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Franks Nursery & Crafts Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common Capital Stock (other than capital stock described in clause (so long as after giving effect thereto no Change e) of Control or other Default or Event the definition of Default shall exist or occur“Indebtedness”);
(b) Borrowers and Guarantors may pay dividends or make distributions to the extent of payments permitted in Section 9.12 belowbelow (other than clause (b)(iii) thereof);
(c) any Subsidiary of a Borrower or Guarantor may pay dividends or make distributions (directly or indirectly) to a Borrower; andBorrower or Guarantor;
(d) Borrowers and Guarantors for any fiscal quarter ending after June 27, 2020, Parent may repurchase Capital Stock consisting of common stock held by employees pursuant pay cash dividends to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planits shareholders from legally available funds therefor, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase Required Conditions have been satisfied and after giving effect thereto, (ii) no Default or Event of Default shall exist or have occurred and be continuingcontinuing as of the date of any such payment and after giving effect to such payment;
(e) Parent may repurchase Capital Stock of Parent, including, without limitation, (i) pursuant to the Convertible Note Hedge and Warrant Documents) and (ii) such repurchase shall Capital Stock held by or to be paid issued to current or former employees, directors and officers pursuant to or in connection with funds legally available thereforany employee stock ownership, option or other equity compensation plan thereof or pursuant to any employment or consulting arrangement or equity subscription agreement, shareholders agreement or similar agreement, provided, that, in each case, (iiiA) such repurchase shall not violate any law or regulation or the terms Required Conditions have been satisfied as of the date of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, payment and (ivB) no Default or Event of Default shall have occurred and be continuing as of the aggregate amount date of all payments for any such repurchases in any calendar year shall not exceed $250,000.payment and after giving effect to such payment; and
(f) Parent may make Permitted Tax Distributions so long as no Event of Default pursuant to Sections 10.1(a)(i), 10.1(g) or 10.1(h) has occurred and is continuing or would result therefrom
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occurhave occurred and be continuing);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors Parent may repurchase Capital Stock consisting for the purpose of common stock held by funding required distribution obligations of Parent to employees pursuant to any employee stock ownership plan thereof of Parent upon the termination, retirement or retirement, death of any such employee or diversification distribution pursuant to and in accordance with the ESOP as in effect on the date of this Agreement and Section 410(28) of the Code, in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iiiii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, (iii) Excess Availability shall be not less than $12,500,000 as of the date of the payment and after giving effect to such payment, and (iv) Parent shall deliver to Agent a certificate from an authorized officer of Parent certifying that as of the date of the payment for such repurchase and after giving effect thereto, Borrowers and Guarantors are and will be in compliance with all representations, warranties and covenants as set forth in this Agreement;
(e) Xxxxxx may pay dividends and pay other distributions in respect of Capital Stock of Xxxxxx, provided, that, (i) Administrative Borrower shall have provided to Agent not less than ten (10) Business Days’ prior written notice of the intention of Xxxxxx to pay such dividends or other distributions (specifying the amount to be paid by Xxxxxx), (ii) immediately after giving effect to any such payment or distribution, Excess Availability shall be not less than $10,000,000 and Total Liquidity shall be not less than $20,000,000, (iii) Agent shall have received, not more than twenty (20) Business Days prior to such payment and not less than five (5) Business Days prior to such payment, current, updated projections of the amount of the Borrowing Base and Excess Availability for the one month period after the date of any payment in respect of such dividends, other distributions, in a form reasonably satisfactory to Agent, representing Borrowers’ reasonable best estimate of the future Borrowing Base and Excess Availability for the period set forth therein as of the date not more than ten (10) days prior to the date of the payment in respect of such dividend or other distributions, which projections shall have been prepared on the basis of the assumptions set forth therein which Borrowers believe are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions, (iv) the amount of the Excess Availability as set forth in the projections delivered pursuant to clause (iii) above for such one month period shall be not less than $12,500,000, (v) the aggregate amount of all such payments for such repurchases in any calendar fiscal year shall not exceed $250,0007,000,000, (vi) the aggregate amount of all such payments in any fiscal quarter shall not exceed $1,750,000 and (vii) as of the date of any such payment and after giving effect thereto, no Default or Event of Default exists or has occurred and is continuing; and
(f) Parent may make distributions or pay dividends to the ESOT in connection with the ESOP in the amounts of regularly scheduled payments to be made thereunder, in accordance with the terms thereof in effect on the date hereof; provided, that, as to any such distribution or dividend, all proceeds received by the ESOT are used by the ESOT to repay the ESOP Indebtedness.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of or class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends dividends, purchase, redeem or repurchase any of their Capital Stock to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; andBorrower or Guarantor;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan; PROVIDED, provided, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.1,000,000; and
(e) Atlas Holdings may pay dividends or may redeem or repurchase any of its Capital Stock; PROVIDED, THAT, as to any payment of such dividend or for such redemption or repurchase each of the following conditions is satisfied:
(i) such payment shall be made with funds legally available therefor,
(ii) such dividend or redemption or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which a Borrower or Guarantor is a party or by which a Borrower or Guarantor or its properties are bound,
(iii) as of the date of the payment of each such dividend or redemption or repurchase, and after giving effect thereto, the aggregate amount of (A) all such payments (on a consolidated basis) made in any fiscal year of Borrowers and Guarantors PLUS (B) commencing after January 1, 2006, all payments and prepayments with respect to Indebtedness made pursuant to the exception set forth in Section 9.9(g)(iv) hereof with respect to repayments or prepayments of Indebtedness made in such fiscal year, shall not exceed the amount equal to fifty (50%) percent of the Consolidated Net Income of Atlas Holdings in the immediately preceding Reference Year (and as to which such payments relate),
(iv) as of the date of the payment of such dividend or redemption or repurchase and after giving effect thereto, the aggregate amount of the Excess Availability shall not be less than $25,000,000, and
(v) as of the date of the payment of such dividend or redemption or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
Appears in 1 contract
Samples: Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Subsidiary of a Borrower or Guarantor may declare and pay dividends to such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)Borrower;
(b) Borrowers and Guarantors any Borrower or Guarantor may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary Borrower, Guarantor or any of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors their respective Subsidiaries may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000; and
(d) any Borrower or Guarantor may declare and pay dividends in respect of any Capital Stock of such Borrower or Guarantor or redeem, retire, defease or repurchase or acquire any shares of Capital Stock of any Borrower or Guarantor; provided, that, as to any such payment, each of the following conditions is satisfied: (i) in no event shall the aggregate amount of all of such payments in any fiscal year exceed $5,000,000, (ii) as of the date that such Borrower or Guarantor may and after giving effect thereto, the aggregate Excess Availability of Borrowers shall be not less than $25,000,000, (iii) as of the date that such Borrower or Guarantor may make such payment and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except thatEXCEPT THAT:
(a) any Subsidiary of a Borrower or Guarantor may declare and pay dividends to such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)Borrower;
(b) Borrowers and Guarantors any Borrower or Guarantor may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary Borrower, Guarantor or any of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors their respective Subsidiaries may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, providedPROVIDED, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.; and
(d) any Borrower or Guarantor may declare and pay dividends in respect of any Capital Stock of such Borrower or Guarantor or redeem, retire, defease or repurchase or acquire
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except thatEXCEPT THAT:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors any Subsidiary of Borrower may pay make payments to Borrower in respect of dividends to or the extent permitted in Section 9.12 belowredemption or repurchase any of its Capital Stock;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends or may redeem or repurchase any of its Capital Stock, PROVIDED, THAT, as to any payment of such dividend or for such redemption or repurchase each of the following conditions is satisfied:
(i) such payment shall be made with funds legally available therefor,
(ii) such dividend or redemption or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its properties are bound,
(iii) as of the date of the payment of such dividend or redemption or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred,
(iv) as of the date of any payment in respect of such dividend or redemption or repurchase and after giving effect thereto, if there are any Loans or Letter of Credit Accommodations outstanding as of such date after giving effect to any such payment, (A) as of the date of any such payment and after giving effect thereto, Excess Availability shall be not less than $20,000,000 and (B) as of the date of any such payment and after giving effect thereto, the aggregate amount of all payments in respect of Permitted Transactions shall not exceed $25,000,000 in any fiscal year of Borrower; and;
(d) Borrowers and Guarantors Borrower may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, providedPROVIDED, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000500,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor Grantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock capital stock of such Borrower or Guarantor Grantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor Grantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock capital stock for consideration in the form of shares of common capital stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors Grantor may from time to time pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary respect of a Borrower its outstanding shares of capital stock or Guarantor may pay dividends to a Borrowerrepurchase or redeem outstanding shares of capital stock; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for any such dividend or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such dividend or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor Grantor or its or their property are bound, (iii) such dividend or repurchase shall be paid out of legally available funds therefor, and (iv) on and after the aggregate date that Agent may request that Grantor notify Agent as to dividends, repurchases or redemptions to be paid after the date of such request, but only on and after such request by Agent, Agent shall have received not less than ten (10) Business Days’ prior written notice thereof setting forth in reasonable detail the amount of all payments for such repurchases the dividend or the shares to be repurchased redeemed and the amount that Parent anticipates that it will pay in any calendar year shall not exceed $250,000respect thereof.
Appears in 1 contract
Samples: General Security Agreement (HyperSpace Communications, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common Capital Stock (other than capital stock described in clause (so long as after giving effect thereto no Change e) of Control or other Default or Event the definition of Default shall exist or occur“Indebtedness”);
(b) Borrowers and Guarantors may pay dividends or make distributions to the extent of payments permitted in Section 9.12 belowbelow (other than clause (b)(iii) thereof);
(c) any Subsidiary of a Borrower or Guarantor may pay dividends or make distributions (directly or indirectly) to a Borrower; andBorrower or Guarantor;
(d) Borrowers and Guarantors Parent may repurchase Capital Stock consisting of common stock held by employees pursuant pay cash dividends to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planits shareholders from legally available funds therefor, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase Required Conditions have been satisfied and after giving effect thereto, (ii) no Default or Event of Default shall exist or have occurred and be continuingcontinuing as of the date of any such payment and after giving effect to such payment;
(e) Parent may repurchase Capital Stock of Parent, including, without limitation, (i) pursuant to the Convertible Note Hedge and Warrant Documents) and (ii) such repurchase shall Capital Stock held by or to be paid issued to current or former employees, directors and officers pursuant to or in connection with funds legally available thereforany employee stock ownership, option or other equity compensation plan thereof or pursuant to any employment or consulting arrangement or equity subscription agreement, shareholders agreement or similar agreement, provided, that, in each case, (iiiA) such repurchase shall not violate any law or regulation or the terms Required Conditions have been satisfied as of the date of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, payment and (ivB) no Default or Event of Default shall have occurred and be continuing as of the aggregate amount date of all payments for any such repurchases in any calendar year shall not exceed $250,000.payment and after giving effect to such payment; and
(f) Parent may make Permitted Tax Distributions so long as no Event of Default pursuant to Sections 10.1(a)(i), 10.1(g) or 10.1(h) has occurred and is continuing or would result therefrom
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor (other than LRG except as permitted in clause (d) below) may pay dividends to a Borrower; and;
(d) LRG may pay dividends to LPC; provided, that, (i) after giving effect to any such dividend payment, the Excess Availability of LRG shall be not less than $2,000,000 and (iii) as of the date of such dividend payment and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(e) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the material terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000200,000; and
(f) LPC may declare and pay cash dividends in respect of, and redeem, cancel or retire, the Series B Preferred Stock in accordance with the terms of the Restated Certificate of Incorporation of LPC as in effect on the date hereof so long as (i) (A) the aggregate amount of all payments in respect of dividends due prior to December 31, 2003 shall not exceed $106,000, (B) the aggregate amount of all payments in respect of dividends (not including those permitted in clause (A) above) in any fiscal year shall not exceed $30,000, and (C) the aggregate amount of all such payments in respect of redemptions, cancellations or retirements (exclusive of dividends) shall not exceed $660,000 (which amount includes past due payments of up to $270,000) and (ii) on the date of any such payment, redemption, cancellation or retirement and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Dividends and Redemptions. Each Borrower and each Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock Equity Interests of such Borrower or such Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; except, except that:
(a) any Borrower or any Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests for consideration in the form of shares of common stock (so long as as, in each case under this Section 9.11(a), after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers Borrower and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or a Guarantor may pay dividends to a Borrower; and
(d) Borrowers Borrower and Guarantors may repurchase Capital Stock Equity Interests consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, ; provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or such Guarantor is a party or by which such Borrower or such Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000275,000.
Appears in 1 contract
Samples: Second Lien Letter of Credit, Loan and Security Agreement (Lighting Science Group Corp)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any such Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Allou Health & Beauty Care Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000150,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Image Entertainment Inc)
Dividends and Redemptions. Each Borrower and Guarantor Credit Parties shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor any Credit Party now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) in any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration case in the form of shares of Capital Stock consisting of common stock stock; provided, however, that (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(ba) Borrowers and Guarantors any Credit Party may pay dividends to the extent permitted in Section 9.12 below;
Parent, (cb) any Subsidiary of a Borrower or Guarantor any Credit Party may pay dividends to such Credit Party or any other Credit Party which is a Borrowerwholly-owned Subsidiary of the Parent, (c) the Parent may pay cash dividends at an annual rate of $4.00 per share on up to 70,000 shares of the Series B Preferred Stock that are outstanding as of the Amendment and Restatement Date; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, provided that, as to any in the case of dividends authorized by clause (c) above, no such repurchase, each of the following conditions is satisfied: payment shall be made if either (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or an Event of Default shall exist or have occurred and be continuing, continuing or would result from the making of such payment or (ii) immediately before or after giving effect to any such payment, the Excess Availability shall be less than $10.0 million and (d) redeem or repurchase Series B Preferred Stock having an aggregate liquidation preference not exceeding $3.5 million at a redemption or purchase price not greater than 100% of the liquidation preference thereof plus accrued and unpaid dividends thereon, so long as immediately after giving pro forma effect to any such repurchase or redemption (x) no Default shall have occurred and be continuing (or would result therefrom), (y) the Excess Availability shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, no less than $20.0 million and (ivz) the aggregate amount Leverage Ratio, as of all payments the last day of the most recent period for which a Compliance Certificate was required to be delivered pursuant to Section 9.6(a), assuming such repurchases in any calendar year redemption or repurchase had been made on the first day of such most recent period, shall not exceed $250,000be at least 0.25 “turns” less than the Leverage Ratio was required to be as of such last day under Section 9.17 (and the Borrowers shall provide to the Administrative Agents a reasonably detailed Officers’ Certificate to such effect).
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as both immediately prior thereto and after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers Stein Mart may declare and Guarantors may pay dividends with respect to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrowerits Capital Xxxxk and repurchase its Capital Stock; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such dividend or Capital Stock repurchase, each of the following conditions is satisfied: (i) as of the date of such dividend declaration or the payment for making of a commitment with respect to such Capital Stock repurchase and after giving effect thereto, no Default or 225156-14 70 Event of Default shall exist or have occurred and be continuing, (ii) such dividend or such repurchase shall be paid with funds legally available therefor, and (iii) such dividend and such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are is bound; except that, in addition to compliance with each of the conditions set forth in clauses (i), (ii) and (iviii) the of this Section 9.11(b), if Stein Mart elects to make dividends and repurchases of Capital Stock xx xn aggregate amount of all payments for such repurchases that exceeds $5,000,000 in any calendar fiscal year of Borrowers, any such excess dividend and repurchase shall not exceed be subject to, in each instance, Borrowers having Excess Availability of at least $250,00030,000,000 both at all time during the sixty (60) consecutive Business Days immediately preceding the date of declaration of such dividend payment or commitment with respect to such Capital Stock repurchase and after giving effect thereto (provided that, solely for the purposes of this Section 9.11(b), the amount determined pursuant to clause (a) of the definition of Excess Availability shall be based solely upon Borrowers' Borrowing Base and without regard to the Maximum Credit); and
(c) any Subsidiary of a Borrower may pay dividends to a Borrower.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.1,000,000;
(e) Parent may from time to time pay dividends in respect of its outstanding shares of Capital Stock consisting of common stock or repurchase outstanding shares of Capital Stock consisting of its common stock; provided, that,
(i) as of the date of the payment for any such dividend or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of the payment for any such dividend or repurchase and after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall have been not less than $15,000,000 for each of the immediately preceding ten (10) consecutive days and the aggregate amount of the Excess Availability of Borrowers shall be not less than $15,000,000,
(iii) such dividend or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which any Borrower or Guarantor or its or their property are bound,
(iv) such dividend or repurchase shall be paid out of legally available funds therefor, and
(v) Agent shall have received not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the amount of the dividend or the shares to be repurchased and the amount that Parent anticipates that it will be required to pay for such repurchase and such other information with respect thereto as Agent may request;
Appears in 1 contract
Samples: Loan and Security Agreement (Perry Ellis International Inc)
Dividends and Redemptions. Each Borrower Borrowers and Guarantor Aftermarket Entities shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock capital stock of such Borrower Borrowers or Guarantor and Aftermarket Entities now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; provided, except that:
however, that (aI) any Borrower or Guarantor Proliance may declare (i) pay up to $337,500 per year in dividends on its Series B convertible preferred stock if and pay to the extent that such dividends or redeemare permitted and required to be paid under the Certificate of Incorporation of Proliance and the Agreement and Plan of Merger dated July 23, retire, defease, purchase or otherwise acquire any shares 1998 relating to the acquisition of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or RA provided that an Event of Default shall exist or occur);
has not occurred and is not then continuing and (bii) Borrowers and Guarantors without duplication of the other dividends permitted to be made under this Section 9.11, Proliance may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers its shareholders and Guarantors may repurchase Capital Stock consisting of common capital stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, its shareholders provided, that, as to any such dividend or repurchase, each of the following conditions is satisfied: (i1) the Borrowers shall maintain Excess Availability of not less than $18,000,000 for thirty (30) consecutive days prior to the date on which any such dividend or stock repurchase is made, and on the date on which such dividend or stock repurchase is made, and for thirty (30) consecutive days following the date on which such dividend or stock repurchase is made, in each case, after giving effect to making such dividend or repurchasing such stock, (2) as of the date of the payment for making of such dividend or such stock repurchase and after giving effect thereto, no Event of Default or Event of Default shall exist or have occurred and be continuing, (ii3) such dividend or stock repurchase shall be paid with funds legally available therefor, (iii4) such dividend or stock repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv5) the aggregate amount of all payments for such dividends and repurchases in any calendar year shall not exceed $250,0003,000,000 and (II) Aftermarket Entities may issue dividends or otherwise make distributions to Parent at any time and (III) any Borrower or Guarantor may pay dividends or distributions as provided under Section 9.12.
Appears in 1 contract
Samples: Loan and Security Agreement (Proliance International, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary of Borrower to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor of such Subsidiary now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) Borrower may from time to time pay dividends in respect of its outstanding shares of Capital Stock consisting of the Series C Participating Preferred Stock and common stock or redeem, retire, defease, purchase or otherwise acquire any outstanding shares of Capital Stock consisting of its common stock; provided, that,
(i) Agent shall have received not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the amount of the dividend or the shares to be repurchased and the amount that Borrower anticipates that it will be required to pay for such repurchase and such other information with respect thereto as Agent may request,
(ii) as of the date of the payment for any such dividend, redemption or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(iii) as of the date of the payment for any such dividend, redemption or repurchase and after giving effect thereto, the aggregate amount of the Excess Availability of Borrower shall have been not less than $10,000,000 for each of the immediately preceding thirty (30) consecutive days and the aggregate amount of the Excess Availability of Borrower shall be not less than $10,000,000,
(iv) such dividend, redemption or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which Borrower or Guarantor its property is bound, and
(v) such dividend, redemption or repurchase shall be paid out of legally available funds therefor;
(b) Borrower and each Subsidiary of Borrower may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers occur and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower such dividend, redemption, or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor Subsidiary or its or their property are bound;
(c) any Subsidiary of Borrower may declare and pay dividends with respect to any class of Capital Stock, in cash or other property (other than property in or on which Agent has a security interest or lien), to Borrower or any Subsidiary of Borrower or to any other Person that holds such class of Capital Stock, so long as (i) any such dividends are paid using funds other than proceeds of Loans or proceeds of Collateral, (ii) any such dividends are paid ratably to the holders of such Capital Stock, (iii) as of the date of and after giving effect to the declaration and payment of such dividend, no Default or Event of Default shall exist or have occurred and be continuing, (iv) any such dividends will not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Subsidiary or its property is bound, (v) any such dividends shall be paid out of legally available funds therefor, and (ivvi) as to any such dividends by any such Subsidiaries that are not wholly-owned Subsidiaries of Borrower, the aggregate amount of all payments for such repurchases in dividends that may be paid to the holders of any calendar year shall such Capital Stock of such Subsidiary other than Borrower or a Subsidiary of Borrower may not exceed $250,000250,000 in the aggregate; and
(d) Borrower and each Subsidiary of Borrower may pay dividends to the extent permitted in Section 9.12(b) hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Anchor Glass Container Corp /New)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or ---------------------------- indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:foregoing except
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a such Borrower; and;
(db) Borrowers Duck Head may pay cash dividends or distributions from legally available funds therefor, to its shareholders from time to time in amounts such that the aggregate amount paid to shareholders does not exceed twenty-five (25%) percent of its cumulative Net Income (calculated from the date of this Agreement to date of determination), provided, that, (i) Lender shall have received ten (10) days prior to any payment thereof, a certificate signed by Borrower's chief financial officer (A) setting forth Duck Head's cumulative Net Income with respect to which the dividend or distribution is to be made and Guarantors providing full information and computations with respect thereto and (B) such dividend or distribution is not in violation of applicable law or any other agreement to which Duck Head is a party or by which it is bound, (ii) as of the date of any such payment and after giving effect thereto, the Excess Availability shall be not less than $6,000,000, and (iii) as of the date of any such payment and after giving effect thereto, no Event of Default or any act, condition or event which, with notice or passage of time or both, would constitute an Event of Default, shall exist or have occurred;
(c) Duck Head may repurchase its Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planstock, provided, that, as to (i) any such repurchase, each of the following conditions is satisfied: (iA) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default or any act, condition or event which, with notice or passage of time or both, would constitute an Event of Default, shall exist or have occurred and be continuing, (iiB) such repurchase shall be paid with funds legally available therefor, (iii) such C)such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are is bound, (D) as of the date of any such payment for such repurchase and after giving effect thereto, the Excess Availability shall be not less than $6,000,000, and (ivE) the aggregate amount of all payments for such repurchases in any calendar year during the term of this Agreement shall not exceed $250,0003,000,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower such Borrower, Guarantor or Guarantor Subsidiary may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors (other than Parent) may pay dividends to the extent permitted in Section 9.12 belowtheir respective immediate corporate parent;
(c) Parent may pay annual dividends in respect of shares of Capital Stock; provided, that,
(i) as of the date of the payment of any Subsidiary such dividend and after giving effect thereto, no Default or Event of a Default shall exist or have occurred and be continuing,
(ii) as of the date of the payment of any such dividend and after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall have been not less than $7,500,000 for each of the immediately preceding ten (10) consecutive days and the aggregate amount of the Excess Availability of Borrowers shall be not less than $7,500,000,
(iii) in no event shall the proceeds of the Loans or the loans under any Intercompany Credit Facility be used to make any such payment, unless as of the date thereof the P&O Unrestricted Cash shall be less than $10,000,000,
(iv) such dividend shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which any Borrower or Guarantor may pay dividends to a Borrower; andObligor or its or their property are bound,
(v) such dividend shall be paid out of legally available funds therefor;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,0001,000,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower Borrower, Guarantor or Guarantor Subsidiary now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except except, that:
(a) any Subsidiary of a Borrower may pay dividends to such Borrower or Guarantor another Subsidiary and any Subsidiary of a Borrower (other than a Borrower) may declare and pay such dividends redeem or redeem, retire, defease, purchase or otherwise acquire repurchase any shares of any class of its Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)by making payments to a Borrower;
(b) Borrowers and Guarantors any Borrower or Guarantor may pay dividends to the extent permitted in Section 9.12 belowor may redeem or repurchase any of its Capital Stock for consideration consisting of common stock;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors or may redeem or repurchase any of its Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planStock, provided, that, as to any payment of such repurchase, dividend or for such redemption or repurchase each of the following conditions is satisfied: :
(i) as of the date of the such payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid made with funds legally available therefor, ,
(iiiii) such dividend or redemption or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such a Borrower or Guarantor is a party or by which such a Borrower or Guarantor or its or their property properties are bound,
(iii) as of the date of the payment of such dividend or redemption or repurchase and after giving effect thereto, and no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred; and
(iv) in the aggregate amount case of all payments for redemptions and repurchases, as of the day of the redemption or repurchase and after giving effect thereto, the Excess Availability, as of the date of any such repurchases in any calendar year payment and after giving effect thereto, shall be not exceed less than $250,00025,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Dividends and Redemptions. Each Borrower and Guarantor Borrowers shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock capital stock of such Borrower or Guarantor Borrowers now or hereafter outstandingoutstanding (except, directly or indirectly, to PCM), or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase purchase, repurchase, recapitalize or otherwise acquire (except, directly or indirectly, from PCM) any shares of any class of Capital Stock capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares (except, directly or indirectly, to PCM) or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, PCM may, so long as no Event of Default has occurred and is continuing or would result from any such repurchase or payment, (a) repurchase a portion of its capital stock and pay dividends on account of its capital stock in an aggregate amount not to exceed Fifteen Million Dollars ($15,000,000) from and after the date hereof so long as the Average 30 Day Excess Availability after giving effect to any such repurchase, each of repurchase or payment is not less than the following conditions is satisfied: (i) as of Excess Availability Threshold then in effect on the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are boundpayment, and (ivb) repurchase a portion of its capital stock and pay dividends on account of its capital stock so long as the aggregate amount Payment Conditions are satisfied with respect to such repurchase or dividend.”
(oo) The following is hereby added to the end of Section 9.17 of the Loan Agreement: “Notwithstanding anything to the contrary herein, no real estate may be added as collateral hereunder unless Agent or Borrowers have given at least 45 days prior written notice to the Lenders of the intent to add such real estate as collateral, and the Agent has confirmed that flood insurance due diligence and compliance has been completed in a manner reasonably satisfactory to all payments for such repurchases Lenders.”
(pp) In Section 11.3(b)(v) of the Loan Agreement, the text “Eligible Adjacent Real Estate, Eligible Real Estate” is hereby deleted and replaced with the text “Eligible Santa Mxxxxx Real Estate, Eligible Illinois Real Estate”.
(qq) The proviso at the end of Section 11.3(c)(ii) of the Loan Agreement is hereby deleted in any calendar year shall not exceed $250,000its entirety.
(rr) The following is hereby added to the Loan Agreement as a new Section 11.3(e) thereof:
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
EXCEPT THAT, Borrower may repurchase up to an aggregate amount of fifteen percent (a15%) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of outstanding shares of common stock (so long of Parent as after giving effect thereto no Change of Control or other Default or Event the date of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to this Agreement for the extent permitted in Section 9.12 below;
(c) any Subsidiary purpose of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting acquiring shares of common stock held by employees to reissue pursuant to any the exercise of employee stock ownership plan thereof upon the terminationoptions, retirement or death of any such employee in accordance with the provisions of such planPROVIDED, provided, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (ia) as of the date of the any payment for in connection with such repurchase repurchase, and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing, ; (iib) as of the date of any payment in connection with such repurchase and after giving effect thereto, Borrower shall be paid in compliance with funds legally available thereforthe financial covenants set forth on Schedule 9.9(c) hereto based on the most recent financial statements of Borrower received by Lender in accordance with Section 9.6 hereof; and (c) as of the date of any payment in connection with such repurchase, (iiiLender shall have received a certificate duly executed by the chief financial officer of Borrower setting forth in detail the calculation supporting Borrower's compliance with the financial covenants set forth on Schedule 9.9(c) hereto, stating that there has been no event, condition or circumstance which would have a Material Adverse Effect since the date of the latest financial statements delivered to Lender pursuant to Section 9.6 hereof and stating that no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing and be continuing as of the date of any payment in connection with such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000after giving effect thereto.
Appears in 1 contract
Samples: Loan and Security Agreement (Startec Global Communications Corp)
Dividends and Redemptions. Each Borrower (a) The Parent shall not and Guarantor shall notnot permit any of its Subsidiaries to, directly or indirectly, declare or pay any dividends on account of any shares of class of any of its Capital Stock of such Borrower or Guarantor Units now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of its Capital Stock Units (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoingforegoing (each of the foregoing is herein called a "Restricted Payment"); provided, except that:
(a) that any Subsidiary directly or indirectly wholly owned by a Co-Borrower or Guarantor may declare and pay such dividends or redeemon its Capital Units; and, retireprovided further, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration that the Obligors may make distributions in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);accordance with this Section 6.4.
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, So long as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have has occurred and is continuing or would occur after giving effect to the Restricted Payment contemplated by this clause (b), the Obligors taken as a whole may make distributions to the Parent to fund its operating expenses of the Parent incurred in the ordinary course of business.
(c) Notwithstanding the subordination provisions of any Subordinated Note or any provision herein but so long as no Default or Event of Default has occurred and is continuing or would occur after giving effect to the Restricted Payment contemplated by this clause (c), the Obligors may make Permitted Distributions directly or indirectly to the Parent so long as the Parent concurrently uses the proceeds of such Permitted Distribution for the purpose specified in the definition thereof.
(d) Notwithstanding the subordination provisions of any Subordinated Note or any provision herein but so long as no Default or Event of Default has occurred and is continuing or would occur after giving effect to the Restricted Payment contemplated by this clause (d), the Obligors may make distributions from and after September 30, 2006 in the Co-Borrowers' Percentage of the Specified Amount to enable the Parent to make payments of principal and accrued and unpaid interest in respect of such principal payment (but not other accrued interest) in respect of the KCO Note if all of the following conditions are satisfied: (i) the Consolidated EBITDA for the four quarters ended immediately prior to the making of the Restricted Payment shall be continuingat least the amount specified in Section 7.1, (ii) simultaneously with such repurchase distribution the Co-Borrowers shall be paid with funds legally available thereformake a prepayment of principal and accrued interest on the Notes equal in the aggregate to the Purchaser's Percentage of amount of the Restricted Payment being made under this clause (d), and (iii) such repurchase at least ten (10) days prior to the making of the Restricted Payment contemplated by this clause (d), the Co-Borrowers shall not violate any law or regulation or provide to the terms Purchasers the compliance certificate for the Test Period contemplated by Section 5.7 which certificate shall state the date of the proposed Restricted Payment and shall provide a computation in reasonable detail of the Specified Amount. The term "Specified Amount", as of any indenturedate, agreement or undertaking means the difference, if positive of (x) Consolidated EBITDA of the Parent and its Subsidiaries for the period (the "Test Period") commencing October 1, 2005 through the end of the fiscal quarter immediately prior to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or the date of the proposed Restricted Payment less (y) the sum of (i) Consolidated Interest Expense for the Test Period, plus (ii) consolidated Capital Expenditures of the Parent and its or their property are bound, and Subsidiaries for the Test Period plus (iii) Restricted Payments made during the Test Period plus (iv) any mandatory payments of principal on any Indebtedness during four fiscal quarters immediately following the aggregate amount end of all payments for such repurchases in any calendar year shall not exceed $250,000.the Test Period. As used herein,
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor No Loan Party shall, or shall notpermit any of its Subsidiaries to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of any such Borrower or Guarantor Person now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower Loan Party or Guarantor any Subsidiary of any Loan Party may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Stock, in each case for consideration in the form of shares of common stock or equity interests (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)) and such shares (except in the case of Parent's Capital Stock) are pledged to the applicable Collateral Agent if required under the terms of any Financing Agreement or Foreign Financing Agreement;
(b) Borrowers the Loan Parties and Guarantors their Subsidiaries may pay dividends to the extent permitted in clause (c) and Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor Parent may pay dividends to the holder of a Borrower; andmajority of such Subsidiary's Capital Stock so long as such holder is the Parent or a Subsidiary of Parent;
(d) Borrowers and Guarantors Parent may repurchase Capital Stock consisting of common stock held by directors or employees pursuant to the Stockholders Agreement and any employee or other stock ownership plan or arrangement thereof upon the resignation, termination, retirement or death of any such employee in accordance with the provisions of such planagreements, plan or arrangement, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with 105 funds legally available therefor, (iii) such repurchase shall not violate in any material respect any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor Parent is a party or by which such Borrower or Guarantor Parent or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,0001,000,000; and
(e) World Wide Automotive, Inc. and Power Investments, Inc. (and their successors and assigns) may each repurchase their Capital Stock held by minority stockholders; provided, that, (i) no Event of Default exist immediately before, and after giving effect to, such repurchase, (ii) Excess Availability immediately before, and after giving effect to, such repurchase shall be at least $35,000,000, (iii) the aggregate amount paid for such repurchased Capital Stock does not exceed, in the case of World Wide Automotive, Inc., $2,700,000, and, in the case of Power Investments, Inc., $3,900,000 and (iv) immediately upon any such repurchase, World Wide Automotive, Inc. and Power Investments, Inc., as applicable, shall have pledged all repurchased shares of Capital Stock to the US Collateral Agent, in a manner satisfactory to US Collateral Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Delco Remy International Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common Capital Stock (other than capital stock described in clause (so long as after giving effect thereto no Change e) of Control or other Default or Event the definition of Default shall exist or occur“Indebtedness”);
(b) Borrowers and Guarantors may pay dividends or make distributions to the extent of payments permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends or make distributions (directly or indirectly) to a Borrower; andBorrower or Guarantor;
(d) Borrowers for any fiscal quarter ending after June 27, 2020, Parent may pay cash dividends to its shareholders once per fiscal quarter in an amount not to exceed the lesser of (x) 40% of Excess Cash Flow for the prior fiscal quarter and Guarantors may repurchase Capital Stock consisting (y) 30% of common stock held by employees pursuant to any employee stock ownership plan thereof upon EBITDA for the termination, retirement or death of any such employee in accordance with the provisions of such planprior fiscal quarter, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect theretoRequired Conditions have been satisfied, (ii) no Default or Event of Default shall exist or have occurred and be continuingcontinuing as of the date of any such payment and after giving effect to such payment, (ii) such repurchase shall be paid with funds legally available therefor, and (iii) 60% of Excess Cash Flow for such prior fiscal quarter minus the applicable Required Amortization Amount for such prior fiscal quarter is positive;
(e) [reserved];
(f) the Loan Parties may make Permitted Tax Distributions so long as no Event of Default pursuant to Sections 10.1(a)(i), 10.1(g) or 10.1(h) has occurred and is continuing or would result therefrom; and
(g) Borrowers and Guarantors may repurchase (or may pay dividends or make distributions to Parent, and Parent may make further distributions thereon, in each case to permit such repurchase) Capital Stock of Parent, Ultimate Parent or any Person that owns, directly or indirectly, 100% of the Capital Stock of Parent, including Capital Stock to be repurchased pursuant to any share repurchase agreement or similar agreement (which shall include, for the avoidance of doubt, the Convertible Note Hedge and Warrant Documents ) and Capital Stock held by or to be issued to current or former employees, directors and officers pursuant to or in connection with any employee stock ownership, option or other equity compensation plan thereof or pursuant to any employment or consulting arrangement or equity subscription agreement, shareholders agreement or similar agreement in an aggregate amount not violate to exceed $1,000,000 in any law fiscal year, so long as no Default or regulation or Event of Default shall have occurred and be continuing as of the terms date of any indenture, agreement or undertaking such payment and after giving effect to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases payment; provided that no Intellectual Property shall be included in any calendar year shall not exceed $250,000such dividends, distributions or payments made pursuant to this Section 9.11.
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock of Borrower (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; except, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors any Subsidiary of Borrower may pay make payments to Borrower in respect of: (i) dividends to (including dividends made in shares of Capital Stock) or (ii) the extent permitted in Section 9.12 belowredemption or repurchase of any of the Capital Stock of such Subsidiary;
(c) Borrower may pay dividends or Borrower or any Subsidiary of a Borrower may redeem or repurchase any of the Capital Stock of Borrower; provided, that, as to any payment of such dividend or for such redemption or repurchase each of the following conditions is satisfied:
(i) such payment shall be made with funds legally available therefor,
(ii) such dividend or redemption or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which Borrower or Guarantor such Subsidiary is a party or by which Borrower or such Subsidiary or either of their properties are bound,
(iii) as of the date of the payment of such dividend or redemption or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(iv) as of the date of any payment in respect of such dividend or redemption or repurchase and after giving effect thereto, if there are any Loans or Letter of Credit Accommodations outstanding as of such date after giving effect to any such payment, (A) as of the date of any such payment, and after giving effect thereto, Excess Availability shall be not less than $35,000,000 and (B) as of the date of any such payment and after giving effect thereto, the aggregate amount of all payments in respect of Permitted Transactions shall not have exceeded $50,000,000 for the fiscal year in which such payment is made (which amount shall be adjusted pro rata to reflect any fiscal year of Borrower consisting of fewer or greater than four (4) calendar quarters, as the case may pay dividends to be, as a Borrower; andresult of the change in fiscal year permitted under Section 9.14 hereof),
(d) Borrowers and Guarantors Borrower may repurchase Capital Stock consisting of common stock held by employees any future, present or former employee or director of Borrower or any of its Subsidiaries or the estate, heirs or legatees of, or any entity controlled by, any such employee or director, pursuant to any management equity plan or stock option plan or any other management or employee stock ownership benefit plan thereof upon the termination, retirement or death of any such employee agreement in accordance connection with the provisions termination of such plan, person’s employment for any reason (including by reason of death or disability); provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed the sum of (A) $250,0001,500,000 (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $4,000,000 in any calendar year) and (B) the cash proceeds of key man life insurance policies on the life of any such person received by Borrower and its Subsidiaries after the date hereof;
(e) repurchases of Capital Stock deemed to occur upon exercise of stock options shall be permitted if such Capital Stock represents (i) a portion of the exercise price thereof or (ii) withholding incurred in connection with such exercise, and
(f) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of Borrower; provided, that, any such cash payment shall not be for the purpose of evading the limitation of this Section 9.11.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000250,000 for any one employee and $500,000 for all employees in the aggregate in any calendar year.
Appears in 1 contract
Samples: Loan and Security Agreement (Commerce Energy Group Inc)
Dividends and Redemptions. Each No Borrower and Guarantor shall, or shall notpermit any Subsidiary to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock Equity Interests of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests for consideration in the form of shares of common stock (additional Equity Interests so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)have occurred and be continuing;
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 7.7 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock Equity Interests consisting of common stock and limited to Equity Interests held by employees of a Borrower pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, provided that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the material terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all cash payments for such repurchases in any calendar year Fiscal Year shall not exceed the Materiality Threshold.
(e) Parent Company may declare and pay cash dividends in respect of the Series B Preferred Stock in accordance with the terms of the Restated Certificate of Incorporation of LPC as of the Closing Date so long as the aggregate amount thereof does not exceed Thirty Thousand Dollars ($250,00030,000) in any twelve (12) month period.
(f) Parent Company may redeem, cancel or retire the Series B Preferred Stock in accordance with the terms of its Restated Certificate of Incorporation as in effect on the Closing Date so long as (i) the amount of all such payments in respect of such redemptions, cancellations or retirements shall not exceed Two Hundred Dollars ($200) per share or, in aggregate amount, Six Hundred Sixty Thousand Dollars ($660,000) (which amount includes past due payments of up to Five Hundred Forty Thousand Dollars ($540,000)); and
Appears in 1 contract
Samples: Credit and Security Agreement (Lexington Precision Corp)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree enter into a binding agreement to do any of the foregoing, except except, that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a BorrowerBorrower or a Guarantor; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees employees, officers or directors pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planplan as in effect on the date hereof (as such plan may be amended in a manner that does not adversely affect Borrowers, Guarantors, Agent or Lenders in any material respect), provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,0002,500,000 (or such other larger amount as Agent (acting at the direction of the Required Lenders) may agree).
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, providedPROVIDED, thatTHAT, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree enter into a binding agreement to do any of the foregoing, except except, that,:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; andBorrower or a Guarantor;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees employees, officers or directors pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planplan as in effect on the date hereof (as such plan may be amended in a manner that does not adversely affect Borrowers, Guarantors, Agent or Lenders in any material respect), provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,0002,500,000 (or such other larger amount as Agent may agree); and
(e) Parent may pay cash dividends and other distributions in respect of its Capital Stock or repurchase of its Capital Stock and the Borrowers and Guarantors (other than Parent) may pay cash dividends to Parent to pay such dividends or so repurchase; provided, that, each of the following conditions is satisfied, (i) Agent shall have received from Administrative Borrower not less than five (5) Business Days’ written notice (or such lesser period of notice as Agent may from to time agree) prior to the date of the payment of any dividends or other distributions or any other repurchases (specifying the amount to be paid by Borrowers or Guarantors), (ii) such dividends, distributions or repurchases shall paid with funds legally available therefor, (iii) such dividends, distributions or repurchases shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, (iv) Borrowers have either (A) issued debt securities or similar instruments as provided in the Section 9.9(h) above and all conditions to the incurrence of such Indebtedness as set forth therein shall have been satisfied, or (B) all outstanding Tranche B Loans shall have been paid in full and the Tranche B Commitments shall have been terminated contemporaneously therewith, (v) as to dividends, distributions or repurchases in any fiscal year of Parent, the daily average of the Excess Availability (calculated without regard to the Tranche B Availability for this purpose) shall have been not less than the Minimum Threshold Amount, (A) for the immediately preceding 30 consecutive day period for which the Borrowing Base has been calculated (or from the date hereof to the date of such payment if 30 days from the date hereof have not yet elapsed) prior to the date of such payment, (B) on the date of such payment, and (C) after giving effect to the such payment, in the case of (B) and (C) on a pro forma basis using the Excess Availability as of the date of the most recent calculation of the Borrowing Base immediately prior to giving effect to any such payment, (vi) the aggregate amount of all such dividends, distributions or repurchases shall not exceed $75,000,000 during the term of this Agreement, and (vii) as of the date of any such payment and after giving effect thereto, no Event of Default shall have occurred and is continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) (each a "Restricted Payment") in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock make Restricted Payments for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends make Restricted Payments to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends make Restricted Payments to a Borrower; and
(d) Borrowers and Guarantors may repurchase make Restricted Payments in respect of Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase Restricted Payments shall be paid with funds legally available therefor, (iii) such repurchase Restricted Payments shall not violate any material law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases Restricted Payments in any calendar year shall not exceed $250,0001,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (International Wire Group Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a such Borrower; and;
(dc) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.1,000,000; and
(d) Each Borrower and Guarantor may, during the period between April 1 and April 15 of each fiscal year of such Borrower or Guarantor, pay (without duplication) cash distributions, from legally available funds therefor, to each of its members and other holders of its economic interests (such holders and members are hereinafter referred to as “Members”) during each fiscal year of such Borrower or Guarantor, to the extent that such Borrower or Guarantor is a limited liability company under the Code during the fiscal year that includes such preceding fiscal year, in an amount not to exceed the aggregate amount of Federal, State and local income taxes that would have been payable by such Borrower or Guarantor, if the highest combined marginal effective rate for Federal, State and local income taxes otherwise applicable were, instead, fifty (50%) percent, with respect to such Borrower’s or Guarantor’s taxable income as a limited liability company subject to income tax for such fiscal year; provided, that with respect to the payment of each such distribution (i) Agent shall have received, at least ten
Appears in 1 contract
Samples: Loan Agreement (Listerhill Total Maintenance Center LLC)
Dividends and Redemptions. Each Borrower and Guarantor Borrowers shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock capital stock of such Borrower or Guarantor Borrowers now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock capital stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; provided, except that:
however, that Proliance may (ai) any Borrower or Guarantor may declare pay up to $337,500 per year in dividends on its Series B convertible preferred stock if and pay to the extent that such dividends or redeemare permitted and required to be paid under the Certificate of Incorporation of Proliance and the Agreement and Plan of Merger dated July 23, retire1998 relating to the acquisition of Evap and (ii) without duplication of the other dividends permitted to be made under this Section 9.11, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors Proliance may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers its shareholders and Guarantors may repurchase Capital Stock consisting of common capital stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, its shareholders provided, that, as to any such dividend or repurchase, each of the following conditions is satisfied: (i1) the Borrowers shall maintain Excess Availability of not less than $18,000,000 for thirty (30) consecutive days prior to the date on which any such dividend or stock repurchase is made, and on the date on which such dividend or stock repurchase is made, and for thirty (30) consecutive days following the date on which such dividend or stock repurchase is made, in each case, after giving effect to making such dividend or repurchasing such stock, (2) as of the date of the payment for making of such dividend or such stock repurchase and after giving effect thereto, no Event of Default or event which with notice or the passage of time would constitute an Event of Default shall exist or have occurred and be continuing, (ii3) such dividend or stock repurchase shall be paid with funds legally available therefor, (iii4) such dividend or stock repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv5) the aggregate amount of all payments for such dividends and repurchases in any calendar year shall not exceed $250,0003,000,000;"
1.16. Sections 9.14 and 9.15. Sections 9.14 and 9.15 are deleted in their entirety and replaced by "Intentionally Omitted."
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000;
(e) Xxxxxx may call all or any lesser portion of the Convertible Notes in accordance with the terms of Article XIII of the Note Purchase Agreement.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends not to exceed $500,000 in the extent permitted in aggregate so long as Excess Availability is at least $5,000,000 at the time of and after giving effect thereto, no Default or Event of Default exists or would result therefrom and the aggregate amount of all such (i) distributions and dividends and (ii) advances to Foreign Subsidiaries under Section 9.12 below9.10(i), does not exceed $500,000;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,00025,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Sed International Holdings Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000500,000;
(e) Parent may from time to time purchase shares of its Capital Stock to make available to employees (i) participating in the Associate Stock Purchase Plan of Parent who have elected to purchase such shares in accordance with such plan that are to be paid for by such employees with payroll deductions (at a price and otherwise on terms specified in the plan) but not to exceed a maximum of $25,000 for each participating employee and (ii) as performance bonuses included in the compensation for such employees in the ordinary course of the business of Borrowers and Guarantors, provided, that, the aggregate amount of all payments for such purchases of shares for such purpose in any calendar year shall not exceed $1,000,000; and
(f) Parent may pay cash dividends and distributions, from legally available funds therefor, to its stockholders and repurchase any shares of its Capital Stock now or hereafter outstanding; provided, that, at the time of payment of each such dividend, distribution or repurchase and after giving effect to the payment thereof: (i) no Default or Event of Default exists or has occurred and is continuing, or would occur or exist after giving effect to such payment, (ii) such dividend, distribution or repurchase is not in violation of applicable law or any other agreement to which Parent is a party or by which Parent is bound and (iii) as of the date of any such payment and after giving effect thereto, either (A) (1) the aggregate amount of the Excess Availability of Borrowers shall be greater than an amount equal to twenty-five (25%) percent of the Borrowing Base and (2) the pro forma projected aggregate amount of the Excess Availability of Borrowers (subject to the receipt of such certificates or information as Administrative Agent may require to confirm such projection) shall be greater than an amount equal to twenty-five (25%) percent of the Borrowing Base for the first six (6) months after such payment, or (B) (1) the aggregate amount of the Excess Availability of Borrowers shall be greater than an amount equal to twenty (20%) percent of the Borrowing Base, (2) the pro forma projected aggregate amount of the Excess Availability of Borrowers (subject to the receipt of such certificates or information as Administrative Agent may require to confirm such projection) shall be greater than an amount equal to twenty (20%) percent of the Borrowing Base for the first six (6) months after such payment and (3) the Fixed Charge Coverage Ratio of Borrowers (on a combined basis) for the most recently ended twelve (12) month period for which Administrative Agent has received financial statements of Borrowers shall be greater than 1.00 to 1:00.
Appears in 1 contract
Dividends and Redemptions. Each No Borrower and Guarantor shall, or shall notpermit any Subsidiary to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock Equity Interests of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests for consideration in the form of shares of common stock (additional Equity Interests so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)have occurred and be continuing;
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 7.7 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock Equity Interests consisting of common stock and limited to Equity Interests held by employees of a Borrower pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, provided that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the material terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all cash payments for such repurchases in any calendar year Fiscal Year shall not exceed the Materiality Threshold.
(e) Parent Company may declare and pay cash dividends in respect of the Series B Preferred Stock in accordance with the terms of the Restated Certificate of Incorporation of LPC as of the Closing Date so long as the aggregate amount thereof does not exceed Thirty Thousand Dollars ($250,00030,000) in any twelve (12) month period;
(f) Parent Company may redeem, cancel or retire the Series B Preferred Stock in accordance with the terms of its Restated Certificate of Incorporation as in effect on the Closing Date so long as (i) the amount of all such payments in respect of such redemptions, cancellations or retirements shall not exceed Two Hundred Dollars ($200) per share or, in aggregate amount, Six Hundred Sixty Thousand Dollars ($660,000) (which amount includes past due payments of up to Five Hundred Forty Thousand Dollars ($540,000)); and (ii) Borrowers comply with all Restricted Payment Conditions in regard to each such payment; and
(g) Parent Company may purchase, retire or otherwise acquire shares of its Equity Interests in connection with odd lot tender offers or purchase, retire or otherwise acquire shares of its Equity Interests in connection with reverse stock splits or "Rule 13e-2 transactions" within the meaning of Securities and Exchange Commission Rule 13e-3; provided, however, that (i) the aggregate amount of all such payments in respect of all such transactions shall not exceed One Million Dollars ($1,000,000); and (ii) Borrowers comply with all Restricted Payment Conditions in regard to each such payment described in this subsection (g).
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) US Borrower may from time to time pay dividends in respect of its outstanding shares of Capital Stock consisting of common stock or repurchase outstanding shares of Capital Stock consisting of its common stock; provided, that,
(i) as of the date of the payment for any such dividend or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of the payment for any such dividend or repurchase and after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall have been not less than $25,000,000 for each of the immediately preceding ten (10) consecutive days and the aggregate amount of the Excess Availability of Borrowers shall be not less than $25,000,000,
(iii) such dividend or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which any Borrower or Guarantor or its or their property are bound,
(iv) such dividend or repurchase shall be paid out of legally available funds therefor, and
(v) Agent shall have received not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the amount of the dividend or the shares to be repurchased and the amount that US Borrower anticipates that it will be required to pay for such repurchase and such other information with respect thereto as Agent may request;
(b) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(bc) any Subsidiary of US Borrower may pay dividends and distributions to its shareholders (and in the case of Robert Comstock Apparel Inc. to the extent such Subsidiary is nxx xxxxxx xxxxx by US Borrower to its shareholders in proportion to their shareholdings); and
(d) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor or Subsidiary may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of (i) common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such planplan and/or (ii) common stock to satisfy employees’ withholding tax requirements related to the lapsing of restrictions for restricted stock and performance shares issued under any Borrower’s or Guarantor’s stock incentive compensation plans, in accordance with the provisions of such plans, provided, that, as to any such repurchase, each of the following conditions is satisfied: (iA) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (iiB) such repurchase shall be paid with funds legally available therefor, (iiiC) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (ivD) as of the date of the payment for such repurchase and after giving effect thereto, the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000500,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to its immediate parent which is a Borrower; andBorrower or Guarantor (other than Parent);
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,00010,000, and (v) the Excess Availability shall not be less than $73,000,000 on the date of such purchase and after giving effect thereto; and
(e) Borrowers and Guarantors may pay dividends in the form of cash, from legally available funds therefor, to Parent in an aggregate amount not to exceed $10,000 during any consecutive twelve (12) month period solely for the purpose of paying for out-of-pocket expenses actually incurred by Parent in connection with the ordinary corporate governance; provided, that, as of the date of any such dividend payment and after giving effect thereto, no Event of Default has occurred and is continuing or would result therefrom.
Appears in 1 contract
Samples: Loan and Security Agreement (Spirit Realty Capital, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall notNo Borrower, Obligor or any other Subsidiary of Parent shall, directly or indirectly, declare or pay any dividends in cash or other of its assets on account of any shares of any class of any Capital Stock of such Borrower Borrower, Obligor or Guarantor any other Subsidiary of Parent now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except except, that:
(a) any Borrower (other than Parent), Obligor, or Guarantor any other Subsidiary of Parent may declare and pay such dividends a dividend, directly or redeemindirectly, retire, defease, purchase to Parent or otherwise acquire to any shares other Borrower or Obligor of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);which it is a Subsidiary; and
(b) Borrowers and Guarantors any Borrower may pay dividends to repurchase the extent permitted in Section 9.12 below;
(c) Capital Stock of itself, any other Borrower, Obligor or other Subsidiary of a Borrower Parent now existing or Guarantor may pay dividends to a Borrowerhereafter formed; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor Obligor is a party or by which such Borrower or Guarantor Obligor or its or their property are bound, and (iv) as of the aggregate amount date of all payments the payment for such repurchases in any calendar year repurchase, Excess Availability for each of the immediately preceding thirty (30) consecutive days shall not exceed have been less than $250,00050,000,000, and after giving effect to such repurchase, Excess Availability shall not be less than $50,000,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, foregoing except that:
that (a) any Subsidiary of a Borrower may pay dividends to such Borrower; (b) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 7.05 below;
; (c) any Subsidiary Borrower, Guarantor or any of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors their respective Subsidiaries may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such any Borrower or Guarantor is a party or by which such any Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000; and (d) Huffy may, on the date hereof, fund a dividend, in respect of common stock of Huffy which had been declared but not paid as of July, 1999, provided, that, (i) such dividend shall be funded on the date hereof and (ii) the aggregate amount of all payments in respect of such dividend shall not exceed $860,000.
Appears in 1 contract
Samples: Credit Agreement (Huffy Corp)
Dividends and Redemptions. Each No Borrower and or Guarantor shall, nor shall notany Borrower or Guarantor permit any of its respective Subsidiaries to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock Equity Interests of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares interest of any class of Capital Stock Equity Interest (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor (or any Subsidiary of any Borrower or Guarantor) may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors any Borrower (or any Subsidiary of any Borrower or Guarantor) may pay dividends to the extent permitted in Section 9.12 belowany other Borrower and any Guarantor or may pay dividends to any Borrower;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors (or any Subsidiaries of Borrowers and Guarantors) may pay (directly or indirectly) dividends in cash to RTW to the extent required to permit RTW to repurchase Capital Stock Equity Interests consisting of common or preferred stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, ; provided, that, as to any such repurchase, each of the following conditions is satisfied: (iA) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (iiB) such repurchase shall be paid with funds legally available therefor, and (C) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which Xxxxxx is a party or by which Xxxxxx or its properties are bound, and (D) Borrowers have Compliance Excess Availability in an amount equal to not less than twenty (20%) percent of the Revolving Loan Limit after giving effect to such payments;
(d) Borrowers and Guarantors (or any Subsidiaries of Borrowers and Guarantors) may pay dividends in cash (directly or indirectly) to RTW, or any other corporation that is the direct or indirect parent of any affiliated, consolidated, combined or unitary group of corporations of which Borrowers and Guarantors are members, in an amount equal to the sum of (i) the federal, state and local income tax liability of such group that is attributable to Borrowers and Guarantors and their respective Subsidiaries and (ii) amounts owed by RTW to the independent trade creditors, service providers, employees and independent directors of RTW for the services or goods (of the types set forth on Schedule 9.11(d)) hereto supplied by such independent trade creditors, service providers, employees and independent directors which have conferred a direct benefit to Borrowers, Guarantors and/or their respective Subsidiaries, plus an arms-length cost plus fees (not to exceed one and three-quarters of one percent (1.75%) of the amounts payable thereof) to RTW for its services rendered in arranging and processing payments for those goods and services; and
(e) Borrowers and Guarantors (or any Subsidiaries of Borrowers and Guarantors) may pay dividends in cash to RTW so that RTW may pay dividends in cash to its equity holders so long as each of the following conditions have been satisfied (i) on and after giving effect to the payment of such dividend, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such dividend shall be paid with funds legally available therefor, (iii) the declaration or payment of such repurchase dividend shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property properties are bound, and (iv) on and after giving effect to the aggregate payment of such dividend, Borrowers have Compliance Excess Availability in an amount equal to not less than twenty (20%) percent of all payments the Revolving Loan Limit, (v) Agent shall have received, in form and substance reasonably satisfactory to Agent, monthly projections showing that, for the twelve (12) months immediately after such repurchases payment is made, Compliance Excess Availability shall be greater than 20% of the Revolving Loan Limit, and (vi) Parent and its Subsidiaries shall have a Fixed Charge Coverage Ratio of 1.0:1.0 calculated based on the immediately preceding twelve (12) months for which Agent has received financial statements delivered in any calendar year shall not exceed $250,000accordance with Section 9.6(a) hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (RTW Retailwinds, Inc.)
Dividends and Redemptions. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary of Borrower to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor of such Subsidiary now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except thatEXCEPT THAT:
(a) Borrower may from time to time pay dividends in respect of its outstanding shares of Capital Stock consisting of common stock or redeem, retire, defease, purchase or otherwise acquire any outstanding shares of Capital Stock consisting of its common stock; PROVIDED, THAT,
(i) Agent shall have received not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the amount of the dividend or the shares to be repurchased and the amount that Borrower anticipates that it will be required to pay for such repurchase and such other information with respect thereto as Agent may request,
(ii) as of the date of the payment for any such dividend, redemption or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(iii) as of the date of the payment for any such dividend, redemption or repurchase and after giving effect thereto, the aggregate amount of the Congress Excess Availability of Borrower shall have been not less than $10,000,000 for each of the immediately preceding thirty (30) consecutive days and the aggregate amount of the Congress Excess Availability of Borrower shall be not less than $10,000,000,
(iv) such dividend, redemption or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which Borrower or Guarantor its property is bound, and
(v) such dividend, redemption or repurchase shall be paid out of legally available funds therefor;
(b) Borrower and each Subsidiary of Borrower may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers occur and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower such dividend, redemption, or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor Subsidiary or its or their property are bound;
(c) any Subsidiary of Borrower may declare and pay dividends with respect to any class of Capital Stock, in cash or other property (other than property in or on which Agent has a security interest or lien), to Borrower or any Subsidiary of Borrower or to any other Person that holds such class of Capital Stock, so long as (i) any such dividends are paid using funds other than proceeds of Loans or proceeds of Collateral, (ii) any such dividends are paid ratably to the holders of such Capital Stock, (iii) as of the date of and after giving effect to the declaration and payment of such dividend, no Default or Event of Default shall exist or have occurred and be continuing, (iv) any such dividends will not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Subsidiary or its property is bound, (v) any such dividends shall be paid out of legally available funds therefor, and (ivvi) as to any such dividends by any such Subsidiaries that are not wholly-owned Subsidiaries of Borrower, the aggregate amount of all payments for such repurchases in dividends that may be paid to the holders of any calendar year shall such Capital Stock of such Subsidiary other than Borrower or a Subsidiary of Borrower may not exceed $250,000250,000 in the aggregate; and
(d) Borrower and each Subsidiary of Borrower may pay dividends to the extent permitted in Section 9.12(b) hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Anchor Glass Container Corp /New)
Dividends and Redemptions. Each Borrower and Guarantor No Loan Party shall, or shall notpermit any of its Subsidiaries to, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of any such Borrower or Guarantor Person now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower Loan Party or Guarantor any Subsidiary of any Loan Party may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Stock, in each case for consideration in the form of shares of common stock or equity interests (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)) and such shares (except in the case of Parent's Capital Stock) are pledged to the applicable Collateral Agent if required under the terms of any Financing Agreement or Foreign Financing Agreement;
(b) Borrowers the Loan Parties and Guarantors their Subsidiaries may pay dividends to the extent permitted in clause (c) and Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor Parent may pay dividends to the holder of a Borrower; andmajority of such Subsidiary's Capital Stock so long as such holder is the Parent or a Subsidiary of Parent;
(d) Borrowers and Guarantors Parent may repurchase Capital Stock consisting of common stock held by directors or employees pursuant to the Stockholders Agreement and any employee or other stock ownership plan or arrangement thereof upon the resignation, termination, retirement or death of any such employee in accordance with the provisions of such planagreements, plan or arrangement, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate in any material respect any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor Parent is a party or by which such Borrower or Guarantor Parent or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,0001,000,000; and
(e) World Wide Automotive, Inc. and Power Investments, Inc. (and their successors and assigns) may each repurchase their Capital Stock held by minority stockholders; provided, that, (i) no Event of Default exist immediately before, and after giving effect to, such repurchase, (ii) Excess Availability immediately before, and after giving effect to, such repurchase shall be at least $35,000,000, (iii) the aggregate amount paid for such repurchased Capital Stock does not exceed $15,000,000, and (iv) immediately upon any such repurchase, World Wide Automotive, Inc. and Power Investments, Inc., as applicable, shall have pledged all repurchased shares of Capital Stock to the US Collateral Agent, in a manner satisfactory to US Collateral Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Delco Remy International Inc)
Dividends and Redemptions. Each Borrower Mackie and each Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock of Mackie or such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase purchase, or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) Mackie or any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase purchase, or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers Mackie and Guarantors may pay dividends to the extent permitted in Section 9.12 6.12 below;
(c) any Subsidiary of a Borrower Mackie or any Guarantor may pay dividends to a BorrowerMackie; and
(d) Borrowers and Guarantors Mackie may repurchase Capital Stock consisting of its common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement retirement, or death of any such employee in accordance with the provisions of such plan, provided, that, provided that as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefortherefor either in cash or in the form of Indebtedness permitted under Section 6.9(j) of this Agreement, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement agreement, or undertaking to which Mackie or such Borrower or Guarantor is a party or by which Mackie or such Borrower or Guarantor or its or their property are is bound, (iv) the aggregate amount of all cash payments for such repurchases in any fiscal year shall not exceed $300,000, and (ivv) the aggregate amount of all payments for such repurchases in any calendar year through the incurrence of subordinated Indebtedness shall not exceed $250,000.2,000,000 in any fiscal year;
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any its Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of its Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor it may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of its Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors any Foreign Subsidiary may pay any dividends to the extent permitted in Section 9.12 belowits shareholders;
(c) any other Subsidiary of a Borrower or Guarantor Parent may pay dividends to its shareholders; provided, that, no Borrower, Guarantor or Domestic Subsidiary may pay any dividends to a Borrower; andForeign Subsidiary;
(d) Borrowers and Guarantors it may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock option plan, or in the case of an employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such employee stock ownership plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000500,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000500,000;
(e) Parent may from time to time purchase shares of its Capital Stock to make available to employees (i) participating in the Associate Stock Purchase Plan of Parent who have elected to purchase such shares in accordance with such plan that are to be paid for by such employees with payroll deductions (at a price and otherwise on terms specified in the plan) and (ii) as performance bonuses included in the compensation for such employees in the ordinary course of the business of Borrowers and Guarantors, provided, that, the aggregate amount of all payments for such purchases of shares for such purpose in any calendar year shall not exceed $1,000,000; and 6991691.13 169
(f) Parent may pay cash dividends and distributions, from legally available funds therefor, to its stockholders and repurchase any shares of its Capital Stock now or hereafter outstanding; provided, that, at the time of payment of each such dividend, distribution or repurchase and after giving effect to the payment thereof: (i) no Default or Event of Default exists or has occurred and is continuing, or would occur or exist after giving effect to such payment, (ii) such dividend, distribution or repurchase is not in violation of applicable law or any other agreement to which Parent is a party or by which Parent is bound, (iii) so long as the aggregate amount of all such payments, together with the aggregate amount of payments permitted under Section 9.9(l), are less than $35,000,000 in any twelve (12) consecutive month period, no Cash Dominion Event shall exist, (iv) on and after such time that the aggregate amount of all such payments, together with the aggregate amount of payments permitted under Section 9.9(l), exceed $35,000,000 in any twelve (12) consecutive month period, (A) the daily average of the Excess Availability for the immediately preceding ninety (90) consecutive day period shall have been not less than fifteen (15%) percent of the Loan Limit and after giving effect to any such payment in respect thereof, on a pro forma basis using the Total Borrowing Base as of the date of the most recent calculation of the Total Borrowing Base immediately prior to any such payment, the Excess Availability shall be not less than fifteen (15%) percent of the Loan Limit and (B) Administrative Agent shall have received projections reasonably satisfactory to it for the twelve (12) month period after the date of any such payment showing, on a pro forma basis after giving effect to such payment, Excess Availability at all times during such period of not less than fifteen (15%) percent of the Loan Limit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the proposed dividend, distribution or repurchase and such information with respect thereto as Administrative Agent may reasonably request, including the proposed date and the amount of such dividend, distribution or repurchase.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occuroccur and be continuing);
(b) Borrowers and Guarantors any Borrower may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor Borrowers may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase pay cash dividends in respect of its Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, purchase its Capital Stock; provided, that, as to any such repurchase, each of the following conditions is satisfied: satisfied as determined by Agent, (i) as of Agent shall have received from Administrative Borrower not less than ten (10) Business Days’ written notice prior to the date of the payment for such repurchase and after giving effect thereto, no Default of any dividends or Event purchase of Default shall exist or have occurred and Capital Stock (specifying the amount to be continuingpaid by Borrowers), (ii) such repurchase dividends and purchases shall be paid with funds legally available therefor, (iii) such repurchase dividends and purchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the Excess Availability for each of the thirty (30) consecutive days immediately preceding the date of such dividend payment or purchase shall be greater than $50,000,000, (v) as of the date of such dividend payment or purchase and for each of the thirty (30) consecutive days immediately following the date of such payment, Excess Availability shall be greater than $50,000,000 (it being agreed that, if a payment is made pursuant to the terms of this clause (d) and the Excess Availability shall fail to be greater than $50,000,000 for any of the thirty (30) consecutive days immediately following the date of such payment or purchase, then such failure shall, automatically and without the necessity of any further action, constitute an Event of Default), (vi) the aggregate amount of all payments for such repurchases in any calendar year dividends and purchases shall not exceed $250,00025,000,000 during any fiscal year or $50,000,000 during the term of this Agreement, and (vii) as of the date of any such payment or purchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor such Subsidiary now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:except
(a) in any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration case in the form of shares of Capital Stock consisting of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur)stock;
(b) Borrowers and Guarantors any Subsidiary of Borrower may pay any dividends to Borrower and in the extent permitted in Section 9.12 belowcase of any Subsidiary of Borrower which is not wholly-owned by Borrower, on a pro rata basis to each other holder of Capital Stock thereof;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase or redeem Capital Stock consisting of common stock Borrower to be retired or held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, as treasury stock; provided, that, as to any such repurchase, each of the following conditions is satisfied: ,
(i) as of the date of the payment for such repurchase or redemption and any payment in connection therewith and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, ,
(ii) as of the date of such repurchase or redemption and any payment in connection therewith and after giving effect thereto, the Excess Availability shall have been not less than $5,000,000 for each of the immediately preceding ten (10) consecutive days and the Excess Availability shall be paid with funds legally available therefor, not less than $5,000,000,
(iii) in no event shall the aggregate of amounts paid in connection with such repurchase repurchases or redemptions exceed $2,000,000,
(iv) such repurchases or redemptions shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor its property is a party or by which such Borrower or Guarantor or its or their property are bound, and ,
(ivv) the aggregate amount of all payments for such repurchases in any calendar year and redemptions shall not exceed $250,000be paid out of legally available funds therefor.
Appears in 1 contract
Samples: Loan and Security Agreement (Hirsch International Corp)
Dividends and Redemptions. Each (a) The Borrower and Guarantor shall not, directly and shall not permit any of its Subsidiaries to:
(i) declare, pay or indirectlymake any dividend or other distribution of assets, declare properties, cash, rights, obligations or pay any dividends Securities on account of any shares of class its Securities, whether by redemption, purchase, retirement or other acquisition; provided that if (i) there does not then exist any Default or Event of Default, (ii) the dividend, if made, would not give rise to the occurrence of any Capital Stock Default or Event of Default, (iii) following the payment of the dividend there would exist no Overadvance and there would exist under the Formula Amount not less than $850,000 of availability (i.e. the Formula Amount less Revolving Loans outstanding less the face amount of Letters of Credit outstanding less trade payables more than 60 days past due less the amount of checks outstanding less uncovered book overdrafts), (iv) INTENTIONALLY OMITTED , (v) the amount of the dividend is not in excess of 50 per cent of Consolidated EBITDA for the Fiscal Year for which such audited financial statements were delivered and (vi) either (x) there shall have been no Overadvance outstanding in six of the last 12 months, or (y) if there shall have been an Overadvance in six of the last 12 months, if an Overadvance is thereafter made, the payee of such dividend shall repay the dividend to the Borrower; then the Borrower may pay such dividend to the Guarantor.
(ii) make any payment, prepayment or retirement of Indebtedness of the Borrower or Guarantor now any of its Subsidiaries other than (A) payments pursuant to this Agreement and the Revolving Notes, (B) mandatory scheduled payments made in accordance with the terms of such Indebtedness, (C) payments of trade debt made in the ordinary course of business, and (D) Permitted Payments as defined in the Subordination Agreement.
(b) The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or hereafter outstandingindirectly, purchase, redeem or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase retire or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of its capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000stock.
Appears in 1 contract
Samples: Credit and Security Agreement (Winstar Communications Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoingshares, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Administrative Borrower or Guarantor may pay dividends to a Borrower; andits direct stockholder;
(d) Borrowers and Guarantors Administrative Borrower may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefortherefor or a note, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all cash payments for such repurchases in any calendar year shall not exceed $250,000500,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Keystone Consolidated Industries Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; except, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, ; provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000100,000.
Appears in 1 contract
Samples: Loan and Security Agreement (American Biltrite Inc)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000100,000, and
(e) Any Borrower or Guarantor may from time to time pay non-cash dividends in respect of its outstanding shares of Capital Stock consisting of common stock; provided, that,
(i) as of the date of the payment for any such dividend or repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ii) such dividend or repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which any Borrower or Guarantor or its or their property are bound,
(iii) Agent shall have received not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the amount of the dividend or the shares to be repurchased and the amount that Borrowers anticipate that it will be required to pay for such repurchase and such other information with respect thereto as Agent may request, and
(iv) No Borrower or Guarantor shall declare or pay any cash dividend, or make any payments in cash or other immediately available funds on account of or in lieu of any dividend on Capital Stock.
Appears in 1 contract
Samples: Loan and Security Agreement (Universal Automotive Industries Inc /De/)
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of any Capital Stock Equity Interests of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing; except, except that:
(a) any Borrower or Guarantor may (i) declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock Equity Interests for consideration in the form of shares of common stock stock, (ii) issue the Accrual Credit in accordance with the SPEARA as in effect on the date hereof and (iii) conduct the Series D Preferred Stock Conversion (so long as as, in each case under this Section 9.11(a), after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock Equity Interests consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, ; provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Lighting Science Group Corp)
Dividends and Redemptions. Each Borrower and each Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or such Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration other than common stock or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:distribution
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(cb) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or such Guarantor is a party or by which Borrower, such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000.1,000,000; and
(c) Borrower may pay dividends in respect of any of its Capital Stock to the extent the proceeds of any such dividends are used by RII to make a substantially contemporaneous payment of either a dividend in respect of the Capital Stock of RII or to redeem or repurchase any of the Capital Stock of RII, provided, that,
(i) as to any payment of such dividends by Borrower, each of the following conditions is satisfied:
(A) such payment shall be made with funds legally available therefor,
(B) such dividend shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which Borrower or RII is a party or by which Borrower or RII or its properties are bound,
(C) as of the date of the payment of such dividend or redemption or repurchase and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as to any payment of such dividends by Borrower to the extent the proceeds are used by RII to pay a dividend in respect of its Capital Stock, each of the following additional conditions precedent is satisfied:
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
(a) any Borrower or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; andBorrower or Guarantor;
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or death of any such employee in accordance with the provisions of such plan, provided, that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, (iii) such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and (iv) the aggregate amount of all payments for such repurchases in any calendar year shall not exceed $250,000150,000.
Appears in 1 contract
Dividends and Redemptions. Each Borrower and Guarantor shall (a) Company will not, directly or indirectlynor will it permit any of its Subsidiaries to, declare or pay make any dividends on account Distribution in respect of any shares class of class its Capital Stock, nor will Company or any of its Subsidiaries directly or indirectly declare or make any Distribution in respect of any Capital Stock of any Subsidiary (in each case, whether such Borrower or Guarantor Capital Stock is now or hereafter outstandingissued, outstanding or created), or set aside cause or permit any reduction or retirement of the Capital Stock of Company or any of its Subsidiaries, provided that Company's Subsidiaries may make Distributions to Company and Company may make certain Distributions as specifically permitted below. Company shall not issue any Capital Stock other than (i) membership interests to Parent provided that such membership interests are Collateral pursuant to the Security Documents and (ii) membership interests to the Equity Owner.
(b) Except as provided herein, Company shall not, nor shall it permit any of its Subsidiaries to, create or otherwise deposit cause or invest suffer to exist or become effective any sums for such purpose, consensual encumbrance or redeem, retire, defease, purchase or otherwise acquire any shares restriction of any class kind on the ability of Capital Stock any Subsidiary of Company to (or set aside or otherwise deposit or invest any sums for such purposei) for any consideration or apply or set apart any sum, pay dividends or make any other distribution Distributions on any of such Subsidiary's Capital Stock owned by Company or any other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by reduction such Subsidiary to Company or any other Subsidiary of capital Company, (iii) make loans or otherwiseadvances to Company or any other Subsidiary of Company, or (iv) transfer any of its property or assets to Company or any other Subsidiary of Company other than restrictions on such transfer or property or assets (1) in respect agreements evidencing (or secured by) Permitted Liens described in Section 6.2(a)(iii) that impose restrictions on the property encumbered by such Permitted Liens, (2) by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint operating agreements, farmin/farmout agreements, joint venture agreements and similar agreements entered into in the ordinary course of business, or (3) that are or were created by virtue of any such shares transfer of, agreement to transfer or agree option or right with respect to do any of the foregoingproperty, except that:
(a) any Borrower assets or Guarantor may declare and pay such dividends or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock for consideration in the form of shares of common stock (so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or occur);
(b) Borrowers and Guarantors may pay dividends to the extent permitted in Section 9.12 below;not otherwise prohibited under this Agreement.
(c) any Subsidiary of a Borrower or Guarantor may pay dividends to a Borrower; and
(d) Borrowers and Guarantors may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon Notwithstanding the termination, retirement or death of any such employee in accordance with the preceding provisions of such planthis Section 6.6, provided, that, as to any such repurchase, each of the following conditions is satisfied: if (i) Company is treated as of the date of the payment a pass through entity for such repurchase and after giving effect theretofederal income tax purposes, (ii) no Default or Event of Default shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available thereforcontinuing on the date thereof or would result therefrom, (iii) such repurchase shall not violate any law there has never been an Event of Default under Section 8.1(a) or regulation or the terms of any indenture, agreement or undertaking to which such Borrower or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound(b), and (iv) no Event of Default shall have occurred under Section 8.1(d) within the aggregate immediately preceding six (6) months, then Company may make quarterly distributions as provided in this Section 6.6(c) during the thirty (30) day period following a Quarterly Payment Date ("Permitted Tax Distributions"); provided that (1) on the date of such Distribution the PDP Collateral Coverage Ratio shall not be less than 1.5 to 1.0 and (2) concurrently with the making of any such distribution, Company will enter into additional Hedging Contracts in compliance with Section 6.3 as requested by Required Lenders. Each Permitted Tax Distribution shall be calculated with respect to the Calculation Quarter most recently ended and shall equal the excess of (A) the product of (i) the maximum federal income tax rate applicable to individuals as in effect for the taxable year in question, utilizing the respective rates for ordinary income or capital gain, depending on the characterization of income as described below, and without giving effect to any phase-out of exemptions or deductions (the "Rate"), multiplied by (ii) the excess of the amount of all payments Company's estimated taxable income for such repurchases quarter over Company's cumulative net loss for all prior taxable periods (the excess of the net losses for all prior periods over the net income for all prior periods) allocated to the direct and indirect holders of Company's Capital Stock. Distributions with respect to the December 26 Quarterly Payment Date shall be based on the estimated taxable income of Company for the entire taxable year and shall take into account the prior quarterly distributions for such year. To the extent that Company's actual taxable income for any Fiscal Year exceeds the sum of the foregoing quarterly estimates, then, if all conditions outlined above remain satisfied, Company shall be entitled to make an additional distribution to the holders of its Capital Stock calculated in the manner provided above based on the actual taxable income of Company. To the extent that Company's actual taxable income for any Fiscal Year is less than the sum of the foregoing quarterly estimates, then Company shall deduct an amount equal to the excess of the Permitted Tax Distributions actually made for such year over the amount that would have been made if calculated in the manner provided above on Company's actual taxable income from the amounts it is otherwise entitled to distribute to the holders of its Capital Stock in the next succeeding quarter or quarters.
(d) Notwithstanding the preceding provisions of this Section 6.6 if (i) no Default or Event of Default exists or would exist after giving effect to such Distribution, (ii) on the date of such Distribution the PDP Collateral Coverage Ratio is greater than 1.5 to 1.0 and (iii) on the date of such Distribution the Debt to EBITDA Ratio as determined in accordance with Section 6.11 is less than 2.0 to 1.0, Company may notify Administrative Agent in writing, no more often than one time in any calendar year Fiscal Quarter, that it intends to make a Distribution from its unrestricted cash on-hand. Such notice shall specify the amount (which may not exceed $250,000Company's unrestricted cash on-hand) of the requested Distribution, and in connection therewith Company shall provide any other information requested by any Lender. Unless Administrative Agent notifies Company prior to the end of the 5th Business Day following its receipt of such notice that Administrative Agent has determined that the intended Distribution would not satisfy all requirements of this Section 6.6(d), Company may make the Distribution in the amount so requested ("Permitted Other Distribution") during the thirty (30) day period following such 5th Business Day.
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