Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of Capital Stock of Borrower 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 Borrower may make dividends and distributions consisting of its Capital Stock to Holdings and: (a) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase its shares of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted in the ordinary course of the business of Borrower; provided, that, (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offering; (b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower constituting common stock, provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld); (c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make; (d) [Reserved]; (e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld); (f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and (g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 in the aggregate in any fiscal year of Borrower.
Appears in 1 contract
Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account of any shares of any class of Capital Stock capital stock of Borrower 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 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 shares, or agree to do any of the foregoing, exceptexcept that, that Borrower may make may, out of legally available funds therefor, pay dividends and distributions consisting of its Capital Stock to Holdings and:
(a) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase its shares of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted in the ordinary course holders of the business of BorrowerClass B Convertible Preferred Stock; provided, that, (i) no Default or Event as to each payment of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offering;
(b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower constituting common stock, provided, thatdividends, each of the following conditions is satisfied: satisfied as determined by Lender:
(ia) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent Lender shall have received not less than ten five (105) Business Days days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and dividend; (b) above), provided, that, each as of the following conditions is satisfied: (i) date of such payment and after giving effect thereto, no Default or Event of Default or act, condition or event that with notice of passage of time or both would constitute an Event of Default, shall exist or have occurred at the time of or after giving effect to any such paymentsand be continuing, (iic) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any such payment under this Section 9.11(c)(iii)(B)and after giving effect thereto, (1) the daily average of the Excess Availability of Borrower for each of the immediately preceding thirty (30) consecutive day period days shall have been not less than $2,500,000; (d) as of the date of any such payment and after giving effect thereto, the Excess Availability of Borrower shall be not less than $7,500,000, 2,500,000; and (ive) Administrative Agent shall Lender has received from Borrower, together with the written notice of Borrower as provided in Section 9.11 (a) hereof, financial projections, in form and substance satisfactory to Lender, indicating that for each day of the three (3) months immediately following any such payment, Borrower is projected to have received Excess Availability of not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder$2,500,000, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this satisfy Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 in the aggregate in any fiscal year of Borrower9.14 hereof."
Appears in 1 contract
Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of Borrower 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 the foregoing shall not prohibit Borrower may make from declaring and paying dividends and distributions consisting of its Capital Stock to Holdings and:
(a) Borrower may make dividends and or making distributions to Holdings to permit Holdings to repurchase its shares of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted in the ordinary course of the business of Borrower; provided, that, (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offering;
(b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower constituting common stock, provided, that, shareholders if each of the following conditions is satisfied: (ia) as of the date of any such payment and after giving effect thereto, there shall have been no Indebtedness evidenced by the WPS Finco Note or Servicer Advances for each of the immediately precedinx xxxe (5) consecutive Business Days, (b) as of the close of business on the Business Day immediately prior to any such payment, funds shall have been segregated, set aside and held in trust by Servicer from Collections in such amounts as may be required under Section 2.3 hereof, and at any time and from time to time, upon Agent's request, only if Agent shall have received evidence that such funds have been so segregated, set aside and held in trust, (c) as of the date of any such payment and after giving effect thereto, no Servicer Advances shall have been outstanding for each of the immediately preceding five (5) consecutive Business Days, all funds for the payment of any expenses (including taxes) of Borrower have been set aside or such payments otherwise made in full, and the amount of the purchase price for any Receivables and Related Assets payable from Borrower to Originator under the Receivables Purchase Agreement has been paid in full, and (d) as of the date of any such payment and after giving effect thereto, no Default or of Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall and be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 in the aggregate in any fiscal year of Borrowercontinuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Westpoint Stevens Inc)
Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account (a) Section 9.11(h) of any shares of class of Capital Stock of Borrower 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 the Loan Agreement is hereby amended to add the parenthetical "(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 the New Preferred Stock)" after the term Stock in the second line of such Section.
(by reduction of capital or otherwiseb) in respect of any such shares or agree to do any Section 9.11 of the foregoingLoan Agreement is hereby amended by deleting the word "and" in front of Section 9.11(h), exceptchanging the punctuation at the end of Section 9.11(h) from a period to a semicolon followed by "and" and adding the following new Sections 9.11(i), that Borrower may make dividends (j), (k) and distributions consisting of its Capital Stock to Holdings and(l) at the end thereof:
(ai) Borrower The Trust may make dividends and distributions to Holdings to permit Holdings to repurchase its shares of Capital Stock from any former employee of Holdings redeem the BUCS or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted in the ordinary course of the business of BorrowerTrust Common Securities; provided, that, (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect as to any such payments, redemption of the BUCS each of the following conditions is satisfied: (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iiii) as of the date three (3) Business Days prior to the date of any such dividends and distributionsredemption, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period days shall have been not less than $25,000,000, (ii) as of the date three (3) Business Days prior to any such redemption and after giving effect to the amount to be paid in respect of such redemption, the Excess Availability shall be not less than $7,500,00025,000,000, (iii) as of the date three (3) Business Days prior to any such redemption and after giving effect to the amount to be paid in respect of such redemption, 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 (iv) there as of the date one (1) Business Day prior to the date of any such redemption, Lender shall be no limitation on have received written notice of the right intention of Borrower the Trust to make any such purchases using net cash proceeds redemption, which notice shall specify the amount of a Qualified Public OfferingBUCS to be purchased or Subordinated Debentures to be redeemed and such other information with respect thereto as Lender may reasonably request;
(bj) Borrower may declare and pay dividends in respect After consummation of the Capital BUCS Exchange Offer, Timet may purchase New Preferred Stock of Borrower constituting common stockin the open market or pursuant to privately negotiated purchases and, notwithstanding anything to the contrary in this Agreement, may redeem the New Preferred Stock, provided, that, as to any such purchase each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent date three (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (103) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B)such purchase, (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period days shall have been not less than $25,000,000, (ii) as of the date three (3) Business Days prior to any such purchase and after giving effect to the amount to be paid in respect of such purchase, the Excess Availability shall be not less than $7,500,00025,000,000, (iii) as of the date three (3) Business Days prior to any such purchase and after giving effect to the amount to be paid in respect of such purchase, no Event of Default, or act, condition or event which with notice of passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, and (iv) Administrative Agent as of the date one (1) Business Day prior to any such purchase, Lender shall have received not less than five (5) Business Days prior written notice of the intention of Borrower Timet to make any such payments specifying purchase, which notice shall specify the amount of New Preferred Stock to be purchased, the price per share thereof and such payments which Borrower intends to makeother information with respect thereto as Lender may reasonably request;
(dk) [Reserved];
(e) Borrower Timet may make pay dividends and distributions to Holdings to permit Holdings to repurchasethe holders of the New Preferred Stock, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: as to any such dividend, (i) such payment shall be made with funds legally available therefor, (ii) as of the date of the payment of such dividend and immediately after giving effect thereto, Excess Availability shall be not less than $25,000,000, (iii) the aggregate amount of all such dividends from and after the issuance of the New Preferred Stock, calculated on a cumulative basis, shall not exceed an aggregate amount equal to $15,000,000 multiplied by the number of calendar years from and including the year of issuance of such New Preferred Stock, (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 is a party or by which any Borrower or Guarantor or its properties are bound, and (v) as of the date of the payment of such dividend 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 at and be continuing; and
(l) Timet may offer to exchange Capital Stock of Timet for New Preferred Stock to the time extent permitted in Section 9.7(b)(xi); provided, that, Timet shall not be required to comply with the requirements in Section 9.7(b)(xi)(A) hereof so long as Lender shall have received one (1) Business Day prior written notice of or after giving effect Timet's intention to make any such transactionexchange, (ii) any payments which notice shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) specify the amount of the Loans available Capital Stock to Borrower be issued for the New Preferred Stock and such other information with respect thereto as Lender may reasonably request. Nothing in this Agreement is intended to limit or require prior notice to or approval of such time based on Lender with respect to Timet's issuance of Capital Stock of Timet in connection with the formula set forth exercise of conversion rights by the holders of BUCS or New Preferred Stock in Section 2.1(a) hereof, subject to accordance with the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as terms of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary BUCS or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 in the aggregate in any fiscal year of BorrowerNew Preferred Stock."
Appears in 1 contract
Dividends and Redemptions. No Borrower shall notshall, directly or indirectly, declare or pay any dividends on account of any shares of any class of Capital Stock of any Borrower 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 stock, or apply or set apart any sum, or make any other distribution distrubution (by reduction of capital or otherwise) in respect of any such shares shares, or agree to do any of the foregoing, except(other than by delivery of a subordinated note evidencing indebtedness permitted under Section 9.9(g) hereof), except that, provided no Event of Default, and no event or state of facts that Borrower may make dividends would, with notice or passage of time or both, constitute an Event of Default, exists or has occurred and distributions consisting is continuing, or would exist or occur after giving effect to such redemption or repurchase or any payment therefor, LFI may, out of its Capital Stock legally available funds therefor: (i) redeem and/or repurchase certain shares and options to Holdings and:
(a) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase its purchase shares of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained LFI owned by such employee certain employees of LFI, pursuant to the exercise of the put options described in Section 9.9(g) hereof ("Management Put Repurchases"), but not to exceed the aggregate amount which, when added to the amounts expended as permitted under clauses (ii) and (iii) hereof in a stock option or any other employee stock purchase arrangement granted given fiscal year of LFI, does not exceed the amount of $350,000 so expended in the ordinary course of the business of Borrower; provided, that, (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such paymentsfiscal year, (ii) repurchase fractional shares, or make payments in lieu of issuing fractional shares, of common stock of LFI upon the aggregate amount exercise of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect stock options or warrants issued to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall LFI to the extent not issued in any twelve (12) month period violation hereof, but not to exceed $25,000,000 less the amount of $100,000 so expended in any dividends one fiscal year of LFI, and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as repurchase common stock of the date LFI in open market transactions involving cash expenditures of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less more than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offering;
(b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower constituting common stock, provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 in the aggregate 200,000 in any fiscal year of BorrowerLFI, where such stock is used in such fiscal year to pay directors' fees to outside directors of LFI. Any amount permitted to be paid under clauses(i), (ii) or (iii) and not so used in any fiscal year of LFI may be carried over under the respective clauses to succeeding fiscal years, but in no event may the amounts carried forward from any fiscal year under all such clauses exceed $250,000 in the aggregate, and in no event may the amounts paid under all such clauses in a given fiscal year of LFI, including any amounts carried over from prior years, exceed $600,000 in the aggregate."
Appears in 1 contract
Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of Borrower 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 Borrower may make dividends and distributions consisting of its Capital Stock to Holdings andexceptthat:
(a) Borrower may make declare and pay such dividends and distributions to Holdings to permit Holdings to repurchase its or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted for consideration in the ordinary course form of the business shares of Borrower; provided, that, common stock (i) so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offeringoccur);
(b) Borrower may declare and pay dividends to the extent permitted in respect of the Section 9.12 below;
(c) Borrower may repurchase Capital Stock consisting of Borrower constituting common stockstock 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 at the time of or after giving effect to any such dividendsand be continuing, (ii) any dividends such repurchase shall be out of paid with funds legally available therefor, (iii) after giving pro forma effect such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported is a party or by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) which Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming its or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000their property are bound, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all payments for such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described repurchases in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, any calendar year shall not exceed $5,000,000 in the aggregate in any fiscal year of Borrower100,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Reptron Electronics Inc)
Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of Borrower 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 Borrower may make dividends and distributions consisting of its Capital Stock to Holdings andexcept that:
(a) Borrower may make declare and pay such dividends and distributions to Holdings to permit Holdings to repurchase its or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted for consideration in the ordinary course form of the business shares of Borrower; provided, that, common stock (i) so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offeringoccur);
(b) Borrower may declare and pay dividends to the extent permitted in respect of the Section 9.12 below;
(c) Borrower may repurchase Capital Stock consisting of Borrower constituting common stockstock 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 at the time of or after giving effect to any such dividendsand be continuing, (ii) any dividends such repurchase shall be out of paid with funds legally available therefor, (iii) after giving pro forma effect such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported is a party or by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) which Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming its or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000their property are bound, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all payments for such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described repurchases in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, any calendar year shall not exceed $5,000,000 in the aggregate in any fiscal year of Borrower100,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Reptron Electronics Inc)
Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of Capital Stock of Borrower 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 Section 9.11 of the foregoing, except, that Borrower may make dividends and distributions consisting of its Capital Stock to Holdings and:
Loan Agreement is hereby amended by (a) Borrower deleting the period appearing at the end of subsection (d) of such Section and replacing it with a semicolon, and (b) adding the following new subsections (e) and (f) at the end of such Section: "(e) Parent may make dividends and distributions to Holdings to permit Holdings to repurchase its shares WHX on or after the Amendment No. 14 Effective Date with the proceeds of Capital Stock from any former employee of Holdings loans or Borrower (or in connection with any severance arrangement with any employeeadvances made by Tranche B Term Loan Lenders permitted under Section 9.9(f) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted in the ordinary course of the business of Borrower; providedhereof, thatPROVIDED, THAT, (i) the sum of the aggregate amount of all such distributions plus the aggregate principal amount of all loans and advances made by Parent to WHX permitted under Section 9.10(l) hereof shall not at any time exceed the difference between (x) $5,689,276 minus (y) the Parcel Sale Reserve Amount, (ii) any such distribution by Parent to WHX shall be made within sixty (60) days following (x) the receipt by Parent of cash proceeds of a loan or advance made by Tranche B Term Loan Lenders to Parent pursuant to Section 9.9(f) hereof and/or (y) a reduction in the Parcel Sale Reserve Amount in accordance with the definition thereof, (iii) within thirty (30) days after the end of each fiscal month, Parent shall provide to Agent a report in form and substance satisfactory to Agent of the amount of distributions, if any, made to WHX pursuant to this Section as of the last day of the immediately preceding month, (iv) such distribution shall be paid with funds legally available therefor and 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 (v) as of the date of each such distribution and after giving effect thereto, no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offering;
(b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower constituting common stock, provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Datecontinuing; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 in the aggregate in any fiscal year of Borrower.
Appears in 1 contract
Dividends and Redemptions. No Borrower shall notshall, directly or indirectly, declare or pay any dividends on account of any shares of class of Capital Stock of any Borrower 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, exceptexcept that LFI may, that Borrower may make dividends out of legally available funds therefor, redeem and/or repurchase certain shares and distributions consisting of its Capital Stock options to Holdings and:
(a) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase its purchase shares of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained LFI owned by such employee certain employees of LFI, pursuant to the exercise of a stock option or the put options described in Section 9.9(g) hereof ("Management Put Repurchases"), but not to exceed the amount of $250,000 so expended in any other employee stock purchase arrangement granted in the ordinary course fiscal year of the business of Borrower; provided, that, (i) LFI and provided no Default or Event of Default shall Default, and no event or state of facts that would, with notice or passage of time or both, constitute an Event of Default, exists or has occurred and is continuing, or would exist or have occurred at the time of or occur after giving effect to such redemption or repurchase or any such paymentspayment therefor (other than by delivery of a subordinated note evidencing indebtedness permitted under Section 9.9(g) hereof). Any amount permitted to be paid for Management Put Repurchases and not so used in any fiscal year may be carried over to succeeding fiscal years, (ii) but in no event may the aggregate amount of such dividends and distributions by Borrower (so paid, including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period carried over from prior years, exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offering;
(b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower constituting common stock, provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 500,000 in the aggregate in any fiscal year of BorrowerBorrowers.
Appears in 1 contract
Dividends and Redemptions. No Borrower shall notshall, directly or indirectly, declare or pay any dividends on account of any shares of any class of Capital Stock of any Borrower 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 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 shares, or agree to do any of the foregoing, except(other than by delivery of a subordinated note evidencing indebtedness permitted under Section 9.9(g) hereof) except that, provided no Event of Default, and no event or state of facts that Borrower may make dividends would, with notice or passage of time or both, constitute an Event of Default, exists or has occurred and distributions consisting is continuing, or would exist or occur after giving effect to such redemption or repurchase or any payment therefor, LFI may, out of its Capital Stock legally available funds therefor: (i) redeem and/or repurchase certain shares and options to Holdings and:
(a) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase its purchase shares of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained LFI owned by such employee certain employees of LFI, pursuant to the exercise of the put options described in Section 9.9(g) hereof ("Management Put Repurchases"), but not to exceed the aggregate amount which, when added to the amounts expended as permitted under clauses (ii) and (iii) hereof in a stock option or any other employee stock purchase arrangement granted given fiscal year of LFI, does not exceed the amount of $250,000 so expended in the ordinary course of the business of Borrower; provided, that, (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such paymentsfiscal year, (ii) repurchase fractional shares, or make payments in lieu of issuing fractional shares, of common stock of LFI upon the aggregate amount exercise of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect stock options or warrants issued to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall LFI to the extent not issued in any twelve (12) month period violation hereof, but not to exceed $25,000,000 less the amount of $100,000 so expended in any dividends one fiscal year of LFI, and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as repurchase common stock of the date LFI in open market transactions involving cash expenditures of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less more than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offering;
(b) Borrower may declare and pay dividends in respect of the Capital Stock of Borrower constituting common stock, provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such dividends, (ii) any dividends shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, shall not exceed $5,000,000 in the aggregate 100,000 in any fiscal year of BorrowerLFI, where such stock is used in such fiscal year to pay directors' fees to outside directors of LFI. Any amount permitted to be paid under clauses (i), (ii) or (iii) and not so used in any fiscal year of LFI may be carried over under the respective clauses to succeeding fiscal years, but in no event may the amounts carried forward from any fiscal year under all such clauses exceed $250,000 in the aggregate, and in no event may the amounts paid under all such clauses in a given fiscal year of LFI, including any amounts carried over from prior years, exceed $500,000 in the aggregate."
Appears in 1 contract
Dividends and Redemptions. Borrower shall not, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of Borrower 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 Borrower may make dividends and distributions consisting of its Capital Stock to Holdings andexcept that:
(a) Borrower may make declare and pay such dividends and distributions to Holdings to permit Holdings to repurchase its or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock from any former employee of Holdings or Borrower (or in connection with any severance arrangement with any employee) to the extent such Capital Stock was obtained by such employee pursuant to the exercise of a stock option or any other employee stock purchase arrangement granted for consideration in the ordinary course form of the business shares of Borrower; provided, that, common stock (i) so long as after giving effect thereto no Change of Control or other Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) the aggregate amount of such dividends and distributions by Borrower (including any amount forgiven by Borrower with respect to any loan or advance made to any such employees under clause (e) of Section 9.10) to all such former employees of Borrower or Holdings shall not in any twelve (12) month period exceed $25,000,000 less the amount of any dividends and distributions which are made in such period under Section 9.11(c) below and which are not funded from a Qualified Public Offering, (iii) as of the date of any such dividends and distributions, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and (iv) there shall be no limitation on the right of Borrower to make such purchases using net cash proceeds of a Qualified Public Offeringoccur);
(b) Borrower may declare and pay dividends in respect of the repurchase Capital Stock consisting of Borrower constituting common stockstock 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 at the time of or after giving effect to any such dividendsand be continuing, (ii) any dividends such repurchase shall be out of paid with funds legally available therefor, (iii) after giving pro forma effect such repurchase shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to any such dividends, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than ten (10) Business Days prior written notice of the intention of Borrower to pay such dividends specifying the amount of such dividends which Borrower intends to pay, together with projections of Excess Availability supported is a party or by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(c) which Borrower may declare and pay any accrued and unpaid dividends, or make dividends and distributions to Holdings for the purpose of redeeming its or retiring any shares of Capital Stock of Holdings (in addition to any dividends permitted under Section 9.11(a) and (b) above), provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such payments, (ii) any such payments shall be out of funds legally available therefor, (iii) all such payments shall either (A) be made solely with the net cash proceeds received by Borrower from a Qualified Public Offering or (B) be limited to an amount in any twelve (12) month period of $25,000,000 less any amounts paid during such period under Section 9.11(a) above, provided that, as of the date of any payment under this Section 9.11(c)(iii)(B), (1) the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000their property are bound, and (iv) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to make such payments specifying the amount of such payments which Borrower intends to make;
(d) [Reserved];
(e) Borrower may make dividends and distributions to Holdings to permit Holdings to repurchase, redeem or otherwise retire any shares of Capital Stock of Holdings (in addition to any repurchases under Sections 9.11(a) and (c) above); provided, that, each of the following conditions is satisfied: (i) no Default or Event of Default shall exist or have occurred at the time of or after giving effect to any such transaction, (ii) any payments shall be out of funds legally available therefor, (iii) after giving pro forma effect to any such transaction, Excess Availability shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (B) the Maximum Credit, (iv) projected Excess Availability as of the end of each of the subsequent twelve month periods shall be not less than twenty percent (20%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder, and (B) the Maximum Credit, and (v) Administrative Agent shall have received not less than five (5) Business Days prior written notice of the intention of Borrower to engage in such transaction specifying the amount of payments which Borrower intends to pay, together with projections of Excess Availability supported by a set of 12 month financial statements (including profit and loss, balance sheet and cash flow statements) prepared on a basis reasonably acceptable to the Administrative Agent and Lenders (not to be unreasonably withheld);
(f) in the event Borrower files a consolidated, combined, unitary or similar type income tax return with Holdings, Borrower may make dividends and distributions to Holdings in amounts required for Holdings to pay federal and state income taxes then due and payable which are directly attributable to the income of Borrower; provided, that such amounts are used by Holdings for such purpose and do not, in any fiscal year, exceed the amount Borrower would have been required to pay in respect of federal and state income taxes for such fiscal year had Borrower been a stand-alone taxpayer or stand-alone group (separate from Holdings) for all fiscal years ending after the Fourth Amendment Effective Date; and
(g) Borrower may make dividends and distributions to Holdings to permit Holdings to pay (i) fees and expenses (including franchise or similar taxes) required to maintain its existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of Holdings, fees and out-of-pocket expenses for board of directors and general operating, compliance and overhead expenses (including legal, accounting and other professional fees and expenses) of Holdings, and (ii) fees and expenses (other than to Affiliates of Borrower) related to any equity or debt offering of Holdings (whether or not successful); provided, that the aggregate amount of all payments for such dividends and distributions made to Holdings to permit Holdings to pay fees and expenses described repurchases in this Section 9.11(g), to the extent such fees and expenses are not directly attributable to the ownership or operation of the Obligors and their Subsidiaries, any calendar year shall not exceed $5,000,000 in the aggregate in any fiscal year of Borrower50,000.
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