Dividends and Related Distributions. The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), except: (i) Restricted Payments payable by any Subsidiary of the Borrower to the Borrower; (ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and
Appears in 1 contract
Dividends and Related Distributions. The Borrower shall not, and shall not permit any of its Subsidiaries Subsidiary to, declare or make or payany Stock Payment, or agree to agree, become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities contingently or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account to do any of the purchaseforegoing, redemptionexcept as follows:
(a) The Borrower may from time to time declare or pay cash Stock Payments with respect to its capital stock, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, subject to the "Restricted Payments"), exceptfollowing conditions:
(i) Restricted Payments payable by any Subsidiary No Put Event, Default or Event of Default shall exist on the Borrower to the Borrower;date of declaration or payment of such Stock
(ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely No Put Event described in the common stock of such Person making the Restricted Payment;
(iii) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: subsection (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio Section 7.1 would have existed as of the last day of the fiscal quarter ending immediately prior most recently before such Stock Payment, after giving effect on a pro forma basis to such Restricted Payment, giving event (together with any other event occurring after such last day as to which this Agreement requires pro forma effect to recalculation of any financial test described in such Restricted subsections, including any other Stock Payment described in this Section 6.5(a) occurring after such last day) as if it such events had occurred on the last day as of such fiscal quarterlast day, and
(iii) The Agent shall receive, with a copy for each Lender, not later than the Business Day after the date such Stock Payment is greater than or equal to 1.10 to 1.00declared, and notice from the Borrower, dated such declaration date, describing in reasonable detail such Stock Payment;
(Bb) the pro forma Availability plus unrestricted cash A Subsidiary of the Borrower immediately after giving effect may declare and pay dividends or other distributions with respect to its Shares of Capital Stock if (i) all of the capital stock of such Restricted Subsidiary is owned by the Borrower or a direct or indirect Wholly-Owned Subsidiary of the Borrower or (ii) such Subsidiary has only one class of capital stock outstanding and such dividend or other distribution is made on a pro rata basis, consistent with the ownership interests in such Shares of Capital Stock, to the owners of such shares; and
(c) The Borrower and any Subsidiary of the Borrower may make Stock Payments if such Stock Payment is greater paid solely in Shares of Capital Stock (or warrants, options or rights therefor) of the Borrower or such Subsidiary, as the case may be, provided, that in the case of a Subsidiary, such dividend or other distribution is made on a pro rata basis, consistent with the ownership interests in such Shares of Capital Stock, to the owners of such shares. The Borrower shall not, and shall not permit any Significant Subsidiary to, declare any dividend payable later than or equal to $15,000,000; and90 days after declaration.
Appears in 1 contract
Dividends and Related Distributions. The Borrower shall Holding Company Guarantor covenants that it will not, and shall will not permit any of its Subsidiaries to, make make, directly or pay, or agree to become or remain liable to make or payindirectly, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments")Stock Payment, except:
(i) Restricted Stock Payments payable by any a Subsidiary of the Borrower Holding Company Guarantor to the BorrowerHolding Company Guarantor, for the purposes of making Stock Payments to the Guarantor for the purposes of paying reasonable administrative costs and salaries of the Guarantor's employees, paying taxes and paying expenses incurred in the ordinary course of business or Stock Payments by a Subsidiary of the Holding Company Guarantor to the Holding Company Guarantor for the purposes of paying reasonable administrative costs and salaries of the Holding Company Guarantor's employees, paying taxes and paying expenses incurred in the ordinary course of business; PROVIDED, that no Stock Payment pursuant to this clause (i) may be made (a) at any time when a Default or Event of Default exists or would occur after giving effect to such Stock Payment or (b) if, after giving effect to such Stock Payment, the aggregate amount of Stock Payments made during any fiscal year of the Company, together with any loans and advances made by the Company pursuant to paragraph 6G(iv) of the Note Agreements during such fiscal year, would exceed $1,500,000;
(ii) Restricted Stock Payments payable to the Holding Company Guarantor for the purposes of making Stock Payments to the Guarantor for the purposes of making Stock Payments to the extent permitted by Section 4.17 of the Borrower and its Subsidiaries provided Black Box Guarantee; PROVIDED, that no Stock Payment pursuant to this clause (ii) may be made at any time when a Default or Event of Default exists or would occur after giving effect to such Restricted Payments are made solely in the common stock of such Person making the Restricted Stock Payment;
(iii) Restricted Stock Payments payable to the Holding Company Guarantor so long as the proceeds thereof shall be loaned to the Company as permitted by paragraph 6E of the Note Agreements; and
(iv) A Subsidiary of the Company may declare and make Stock Payments if all of the capital stock of such Subsidiary is owned by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent Company or by a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day direct or indirect Wholly- Owned Subsidiary of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andCompany.
Appears in 1 contract
Samples: Guarantee Agreement (Black Box Corp)
Dividends and Related Distributions. The Borrower shall not, and shall not permit any Subsidiary of its Subsidiaries the Borrower to, make declare or paypay any dividend (other than dividends payable solely in Common Stock and dividends payable by any wholly-owned Subsidiary of the Borrower to the Borrower or to another wholly-owned Subsidiary of the Borrower) on, or agree to become make any payment on account of, or remain liable to make or pay, any dividend set apart assets for a sinking or other distribution of any nature (whether in cashanalogous fund for, property, securities or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or other acquisition of its of, any shares of equity interests any class of Capital Stock of the Borrower or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary of Borrower (or warrantssuch declarations, options or rights therefor)payments, partnership interests or limited liability company interests (collectivelysetting apart, the purchases, redemptions, defeasances, retirements, acquisitions and distributions being herein called "Restricted Payments"), except:
(i) Restricted Payments payable by any Subsidiary except that, so long as no Potential Event of Default or Event of Default has occurred, is continuing or will result from the Borrower to the Borrower;
(ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock payment of such Person making the Restricted Payment;
(iii) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio Borrower may during any fiscal year make Restricted Payments as follows: the Borrower may (a) declare, and pay within ninety (90) days of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debtdeclaration, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDAdividends on Common Stock, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, and (b) ifdeclare, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as and pay within ninety (90) days of (1) the date of declaration, dividends on Preferred Stock and (c) redeem Preferred Stock in accordance with the Borrower's Restated Articles of Incorporation, as amended; provided, however, that nothing contained in this Section 7.2(e) shall prohibit the Borrower from making any Restricted Payments to the holders of its 9% Cumulative Preferred Stock pursuant to the Borrower's Restated Articles of Incorporation, as amended, except to the extent that such Restricted Payment is made with respect to payments would be prohibited by the determination Borrower's Restated Articles of Consolidated DebtIncorporation, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andamended.
Appears in 1 contract
Samples: Term Loan Agreement (Pg Energy Inc)
Dividends and Related Distributions. The Borrower shall not, and shall not permit any of its Subsidiaries Subsidiary to, declare or make or payany Stock Payment, or agree to agree, become or remain liable (contingently or otherwise) to do any of the foregoing, except as follows:
(a) The Borrower may from time to time repurchase for cash shares of its common stock of a series publicly traded, subject to the following conditions:
(i) Repurchases under this Section 7.06(a) in any calendar year shall not exceed $1,000,000 in the aggregate in any calendar year, and no more than $100,000 of such repurchases in the aggregate in any calendar year may be from any one director, officer or employee of the Borrower or any of its Subsidiaries (and for this purpose repurchases from relatives or Affiliates of any such Person shall be attributed to such Person); and
(ii) No Event of Default or Potential Default shall exist on the date of such repurchase, or immediately thereafter and after giving effect to such repurchase;
(b) The Borrower may from time to time declare and pay cash dividends on the Existing Preferred Stock to the extent required by the terms thereof as constituted on June 29, 1995, subject to the condition that no Event of Default or Potential Default shall exist on the date of declaration or payment of such dividend, or immediately thereafter and after giving effect to such proposed declaration or payment;
(c) The Borrower may from time to time make mandatory redemptions of the Existing Preferred Stock as and when required to do so by the mandatory terms of the Existing Preferred Stock as constituted on June 29, 1995; PROVIDED, that in the event that an Event of Default or payPotential Default shall exist on the date of such mandatory redemption, or immediately thereafter and after giving effect thereto, such mandatory redemption shall constitute an Event of Default;
(d) The Borrower may from time to time make optional redemptions of the Existing Preferred Stock in accordance with the terms thereof as constituted on June 29, 1995, subject to the following conditions:
(i) On the date of such repurchase (and after giving effect to any extensions of credit hereunder on such date), the unborrowed commitments available to be borrowed by the Borrower under the Revolving Credit Agreement shall be at least $20,000,000;
(ii) The Consolidated Funded Debt Ratio for the period of four consecutive fiscal quarters ending on the last day of the fiscal quarter ending most recently before such repurchase, after giving effect on a PRO FORMA basis to such repurchase as if such repurchase had occurred as of such last day, shall be less than 2.50;
(iii) No Event of Default or Potential Default shall exist on the date of such repurchase, or immediately thereafter and after giving effect to such repurchase; and
(iv) The Agent shall receive, with a copy for each Lender, not later than the Business Day after the date such repurchase is made, a certificate signed by a Responsible Officer of the Borrower, dated such repurchase date, describing such dividend, certifying that such repurchase is in compliance with the provisions of this Section 7.06(c), and including a statement in reasonable detail of the information and calculations necessary to establish compliance with this Section 7.06(d);
(e) A Subsidiary of the Borrower may declare and pay dividends or other distributions with respect to its Shares of Capital Stock, PROVIDED, that such dividend or other distribution is made on a PRO RATA basis, consistent with the ownership interests in such Shares of any nature Capital Stock, to the owners of such shares;
(whether f) The Borrower may make Stock Payments if such Stock Payment is paid solely in cash, property, securities or otherwise) on account Shares of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests Capital Stock (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, ) of the "Restricted Payments"), except:Borrower; and
(ig) Restricted Payments payable by any Subsidiary of the The Borrower to the Borrower;
(ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment;
(iii) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andmay make
Appears in 1 contract
Samples: Credit Agreement (Primark Corp)
Dividends and Related Distributions. The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), except:
(i) Restricted Payments payable by any Subsidiary of the Borrower to the Borrower;to, declare, or make any Stock Payment, except as follows:
(ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment;
(iii) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) So long as no Event of Default or Potential Default shall have occurred and be continuing or shall occur after giving effect thereto, Stock Payments to the Holding Company Guarantor for the purposes of paying reasonable administrative costs and salaries of the Holding Company Guarantor's employees, paying taxes and paying expenses incurred in the ordinary course of business and of making Stock Payments to the Guarantor for the purposes of paying reasonable administrative costs and salaries of the Guarantor's employees, paying taxes and paying expenses incurred in the ordinary course of business; provided, that no Stock Payment pursuant to this Section 7.07(a) may be made if, immediately after giving effect to such Restricted Stock Payment, the pro forma Debt/EBITDA Ratio as aggregate amount of Stock Payments made during any fiscal year of the Borrower, together with any loans and advances made pursuant to Section 7.06(b)(ii) (1) the date that Restricted Payment is made with respect other than to the determination Guarantor for the purpose of Consolidated Debtpaying in full the Indebtedness secured by the Senior Subordinated Indenture) during such fiscal year, would exceed $1,500,000;
(b) So long as no Event of Default or Potential Default shall have occurred and (2) be continuing or shall occur after giving effect thereto, Stock Payments to the last day Holding Company Guarantor for the purpose of making Stock Payments to the Guarantor for the purpose of making Stock Payments to the extent permitted by Section 5.03 of the fiscal quarter ending immediately prior Guaranty;
(c) Stock Payments to the date such Restricted Payment is made with respect Holding Company Guarantor for the purpose of making Stock Payments to the determination Guarantor for the purpose of Consolidated EBITDA, is less than or equal repaying certain Indebtedness of the Guarantor to 2.00 the Borrower in the principal amount of $43,670,000;
(d) Stock Payments to 1.00, then the pro forma Availability plus unrestricted cash Holding Company Guarantor so long as the proceeds thereof shall be loaned to the Borrower as permitted by Section 7.04 hereof; and
(e) A Subsidiary of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, may declare and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day make Stock Payments if all of the fiscal quarter ending immediately prior to capital stock of such Subsidiary is owned by the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as Borrower or by a direct or indirect wholly-owned Subsidiary of the last day Borrower.
11. Section 7.12 of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on Credit Agreement is hereby deleted in its entirety and the last day of such fiscal quarter, following Section is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andhereby inserted in lieu thereof:
Appears in 1 contract
Samples: Credit Agreement (Black Box Corp)
Dividends and Related Distributions. The REIT Guarantor, the Affiliate REITs, the Borrower shall not, and shall their respective Subsidiaries will not permit make any of its Subsidiaries to, make or pay, Restricted Payment or agree to become or remain liable to make any Restricted Payment if a Potential Default or payEvent of Default has occurred and is continuing or would result therefrom; provided that, notwithstanding the foregoing and, subject to the proviso at the end of this sentence, notwithstanding the occurrence or continuance of a Potential Default or Event of Default, the Borrower may satisfy any dividend request or other distribution of demand to redeem any nature (whether in cash, property, securities or otherwise) on account of or in respect of its partnership interests by any holder thereof made pursuant to and in accordance with its organizational documents with shares of equity interests, stock of the REIT Guarantor and pay cash distributions to the REIT Guarantor and other holders of partnership interests in the Borrower with respect to any fiscal year to the extent necessary for the REIT Guarantor or limited liability company interests on account any of the purchaseAffiliate REITs to distribute, redemptionand the REIT Guarantor and the Affiliate REITs may so distribute, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, cash dividends to their shareholders in an aggregate amount not to exceed the "Restricted Payments"), except:
minimum amount required for the REIT Guarantor and/or the Affiliate REITs to maintain their REIT Status and to avoid (i) Restricted Payments payable by any Subsidiary the payment of taxes imposed under Code Section 857(b)(1) and 4981 of the Borrower to the Borrower;
Code and analogous provisions of state law, and (ii) to avoid the payment of taxes imposed under Section 857(b)(3) of the Code and analogous provisions of state law; provided that if a Potential Default or Event of Default under Section 11.1(k) exists, or if the Obligations have been accelerated, neither the REIT Guarantor, the Affiliate REITs or the Borrower may make any Restricted Payments. Subsidiaries (other than the Borrower) may make Restricted Payments payable by to the Borrower and its other Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment;
(iii) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andat any time.
Appears in 1 contract
Dividends and Related Distributions. The Borrower Guarantor shall not, and shall not permit any Subsidiary of its Subsidiaries the Guarantor to, declare or make or payany Stock Payment, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), exceptexcept as follows:
(ia) Restricted So long as no Event of Default or Potential Default shall have occurred and be continuing or shall occur after giving effect thereto, Stock Payments payable made directly or indirectly to Black Box Corporation (the "Parent") or, in the case of any Subsidiary of the Guarantor, to the Guarantor for the purposes of paying reasonable administrative costs and salaries of the Parent's or, in the case of Stock Payments made directly or indirectly to the Guarantor by any Subsidiary of the Borrower to Guarantor, the Borrower;
(ii) Restricted Payments payable by the Borrower Guarantor's employees, paying taxes and its Subsidiaries provided that such Restricted Payments are made solely paying expenses incurred in the common stock ordinary course of such Person making the Restricted Payment;
(iiibusiness; provided, that no Stock Payment pursuant to this Section 5.03(a) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) may be made if, immediately after giving effect to such Restricted Stock Payment, the pro forma Debt/EBITDA Ratio as aggregate amount of Stock Payments made during any fiscal year of the Guarantor, together with any loans and advances made by the Borrower pursuant to Section 7.06(b)(ii) of the Credit Agreement (1) the date that Restricted Payment is made with respect other than to the determination Parent for the purpose of Consolidated Debtpaying in full the Indebtedness secured by the Senior Subordinated Indenture) during such fiscal year, would exceed $1,500,000;
(b) So long as no Event of Default or Potential Default shall have occurred and (2) be continuing or shall occur after giving effect thereto, Stock Payments to the last day Guarantor for the purpose of making Stock Payments to the extent permitted by Section 5.03 of the fiscal quarter ending immediately prior Black Box Guaranty;
(c) Stock Payments to the date such Restricted Payment is made with respect Parent for the purpose of repaying certain Indebtedness of the Parent to the determination Borrower in the principal amount of Consolidated EBITDA, is less than or equal $43,670,000;
(d) Stock Payments made by the Borrower to 2.00 the Guarantor so long as the proceeds thereof shall be loaned to 1.00, then the pro forma Availability plus unrestricted cash Borrower as permitted by Section 7.04 of the Credit Agreement; and
(e) A Subsidiary of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, may declare and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day make Stock Payments if all of the fiscal quarter ending immediately prior to capital stock of such Subsidiary is owned by the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as Borrower or by a direct or indirect wholly-owned Subsidiary of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andBorrower.
Appears in 1 contract
Dividends and Related Distributions. The Borrower shall Company will not, and shall will not permit any of its Subsidiaries to, declare or make or payany Stock Payment, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), exceptexcept as follows:
(i) Restricted Stock Payments payable by any Subsidiary to the Holding Company Guarantor, for the purposes of making Stock Payments to the Guarantor for the purposes of paying reasonable administrative costs and salaries of the Borrower Guarantor's employees, paying taxes and paying expenses incurred in the ordinary course of business or Stock Payments to the BorrowerHolding Company Guarantor for the purposes of paying reasonable administrative costs and salaries of the Holding Company Guarantor's employees, paying taxes and paying expenses incurred in the ordinary course of business; provided, that no Stock Payment pursuant to this clause (i) may be made (a) at any time when a Default or Event of Default exists or would occur after giving effect to such Stock Payment or (b) if, after giving effect to such Stock Payment, the aggregate amount of Stock Payments made during any fiscal year of the Company, together with any loans and advances made pursuant to paragraph 6G(iv) during such fiscal year, would exceed $1,500,000;
(ii) Restricted Stock Payments payable to the Holding Company Guarantor for the purposes of making Stock Payments to the Guarantor for the purposes of making Stock Payments to the extent permitted by Section 4.17 of the Borrower and its Subsidiaries provided Guarantee Agreement; provided, that no Stock Payment pursuant to this clause (ii) may be made at any time when a Default or Event of Default exists or would occur after giving effect to such Restricted Payments are made solely in the common stock of such Person making the Restricted Stock Payment;
(iii) Restricted Stock Payments payable to the Holding Company Guarantor so long as the proceeds thereof shall be loaned to the Company as permitted by paragraph 6E hereof; and
(iv) A Subsidiary of the Company may declare and make Stock Payments if all of the capital stock of such Subsidiary is owned by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent Company or by a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day direct or indirect Wholly-Owned Subsidiary of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination Company.
(g) Paragraph 6M of Consolidated EBITDA, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash each of the Borrower immediately after giving effect Agreements is amended in its entirety to such Restricted Payment is greater than or equal to $15,000,000, and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio read as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andfollows:
Appears in 1 contract
Dividends and Related Distributions. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of equity interestsCapital Stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments")Capital Stock, except:
(i) Restricted Payments payable dividends or other distributions (A) to a Loan Party and (B) by any a Non-Guarantor Subsidiary of the Borrower to the Borroweranother Non-Guarantor Subsidiary;
(ii) Restricted Payments dividends or other distributions payable by in the form of Capital Stock of the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment(other than Disqualified Stock);
(iii) Restricted Payments payable in the event any of the Loan Parties file consolidated income tax returns with Parent, dividends or other distributions to Parent sufficient (but not in excess of the amount) to enable Parent to pay the portion of any consolidated income taxes then due and owing by Parent that are attributable to the Borrower Loan Parties; provided that prior (x) Parent actually uses such dividends or distributions promptly upon receipt thereof to making pay such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: income taxes and (a) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1y) the date that Restricted Payment is made amount of such dividends and distributions shall not be greater with respect to any taxable year than the determination amount of Consolidated Debt, and (2) such income taxes that the last day of the fiscal quarter ending immediately prior to the date applicable Loan Parties would have paid had such Restricted Payment is made Loan Parties not filed consolidated income tax returns with Parent with respect to any taxable year ending after the determination Closing Date;
(iv) dividends or other distributions to Parent in an aggregate amount not to exceed $5,000,000 per calendar year to be used by Parent primarily to pay Administrative Expenses;
(v) so long as no Potential Default or Event of Consolidated EBITDADefault exists, is less than or equal dividends and other distributions to 2.00 Parent in an aggregate amount at any time outstanding not to 1.00, then exceed $15,000,000; provided that the pro forma Availability plus unrestricted amount permitted by this clause (v) shall be replenished by the amount of cash capital contributions made by Parent to the common equity of the Borrower immediately after giving effect any dividends or distributions made pursuant to this clause (v);
(vi) dividends and other distributions to Parent the proceeds of which are used solely to make contributions to the WHX Plan, which amounts (x) shall not exceed the minimum required contribution to the WHX Plan under Section 412 of the Code due on the date of such Restricted Payment is greater than dividend or equal distribution and (y) shall not count toward the amount of dividends or other distributions to $15,000,000Parent permitted under clauses (iv) and (v) of this Section 8.2.5;
(vii) so long as no Potential Default or Event of Default exists, other dividends or distributions to Parent in an aggregate amount not to exceed the Specified Sale Proceeds Available Amount; and
(viii) the forgiveness of loans owing by Parent to the Borrower outstanding on the Closing Date, and (b) if, immediately after giving effect to any deemed non-cash dividend in connection with such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andforgiveness.
Appears in 1 contract
Dividends and Related Distributions. The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), except:
(i) Restricted Payments payable by any Subsidiary of the Borrower to, declare or make any Stock Payment, except as follows:
(a) So long as no Event of Default or Potential Default shall have occurred and be continuing or shall occur after giving effect thereto, Stock Payments to the Guarantor for the purposes of paying reasonable administrative costs and salaries of the Guarantor's employees, paying taxes, paying expenses incurred in the ordinary course of business and making payments required under the Services Agreement; PROVIDED, that no Stock Payment pursuant to this Section 7.07(a) may be made if, after giving effect to such Stock Payment, the aggregate amount of Stock Payments made during any fiscal year of the Borrower;
, together with any loans and advances made pursuant to Section 7.06(b)(ii) (iiother than to the Guarantor for the purpose of paying in full the Indebtedness secured by the Senior Subordinated Indenture) Restricted Payments payable during such fiscal year, would exceed $1,500,000, less the amount paid directly by the Borrower and its Subsidiaries provided that in such Restricted fiscal year under the Services Agreement;
(b) So long as no Event of Default or Potential Default shall have occurred and be continuing or shall occur after giving effect thereto, Stock Payments are made solely to the Guarantor for the purpose of making Stock Payments to the extent permitted by Section 5.03 of the Guaranty;
(c) Stock Payments to the Guarantor for the purpose of repaying certain Indebtedness of the Guarantor to the Borrower in the common principal amount of $43,670,000; and
(d) A Subsidiary of the Borrower may declare and make Stock Payments if all of the capital stock of such Person making the Restricted Payment;
(iii) Restricted Payments payable Subsidiary is owned by the Borrower provided that prior to making such Restricted Payment or by a direct or indirect wholly-owned Subsidiary of the Borrower shall deliver Borrower.
3. The Lender hereby consents to the Administrative Agent a distribution compliance certificate amendment to the License Agreement in substantially the form attached hereto as Exhibit A.
4. This Amendment shall be governed by and construed in accordance with the laws of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Paymentthe Commonwealth of Pennsylvania.
5. Except as specifically amended by this Amendment, the pro forma Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Consolidated Debt, terms and (2) the last day conditions of the fiscal quarter ending immediately prior to Credit Agreement shall remain in full force and effect and shall be binding upon the date parties hereto and their respective successors and assigns.
6. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed shall be deemed an original, but all such Restricted Payment is made with respect to counterparts shall constitute but one and the determination of Consolidated EBITDA, is less than or equal to 2.00 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, and (b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; andsame instrument.
Appears in 1 contract
Samples: Credit Agreement (Black Box Corp)
