Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then (i) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000." P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 2 contracts
Samples: Credit Agreement (Pyramid Oil Co), Credit Agreement (Pyramid Delaware Merger Subsidiary, Inc.)
Dividends, Distributions and Redemptions. The Borrower (and following the Parent MLP IPO, the Parent MLP) will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, declare or makepay any dividend, purchase, redeem or agree to pay otherwise acquire for value any of its capital or make, directly partnership interests now or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners Partners or make any distribution of its Property assets to its Equity Interest holdersPartners, provided that except for any such dividend, distribution or redemption (collectively, “Distributions”) (a) by any Restricted Subsidiary to the Borrower (or following the Parent MLP IPO, to the Parent MLP) or to any other Restricted Subsidiary (or in the case of Designated Borrowing Base Entities, by such Person to all of the owners of its equity interests on a pro rata basis or on a basis which is more favorable to the Borrower (or following the Parent MLP IPO, the Parent MLP) and the Restricted Subsidiaries), and (b) prior to the Parent MLP IPO, by the Borrower, and following the Parent MLP IPO, by the Parent MLP, other than a redemption of the Preferred Stock, so long as no Default, Event of Default or Deficiency has occurred and is continuing or will would result therefrom therefrom, and no Borrowing Base Deficiency then exists and (c) by the Borrowing Base Utilization Percentage is 90% or less after giving effect theretoBorrower of a redemption of the Preferred Stock, then so long as (i) the Borrower may declare no Default, Event of Default or Deficiency has occurred and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantoris continuing or would result therefrom, (ii) after giving effect to such redemption of Preferred Stock on a pro forma basis, the Borrower may declare and pay dividends shall be in compliance with respect to its Equity Interests payable solely the covenants set forth in additional shares Section 9.01 as of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month the applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes of Section 9.01, as if such redemption of the Preferred Stock, and all other redemption of Preferred Stock since the first day of such applicable period, had been redeemed on the first day of such applicable period), and (iii) after giving effect to such redemption of Preferred Stock, the Borrower may make Restricted Payments pursuant to and accordance with shall have demonstrated that it will have unrestricted cash liquidity (including, for purposes of this computation, the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement Unused Amount that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ixis then available for borrowing) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000."
P. Section 9.12 less than 10% of the Credit Agreement is amended to read in its entirety as follows:Aggregate Elected Commitment Amount.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Black Stone Minerals, L.P.)
Dividends, Distributions and Redemptions. The Parent MLP and the Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, declare or makepay any dividend, purchase, redeem or agree to pay otherwise acquire for value any of its capital or make, directly partnership interests now or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners Partners or make any distribution of its Property assets to its Equity Interest holdersPartners, provided that except for any such dividend, distribution or redemption (collectively, “Distributions”)
(a) by any Restricted Subsidiary to the Parent MLP or to any other Restricted Subsidiary;
(b) by the Parent MLP, other than a redemption of the Preferred Stock or the Series B Preferred Stock, so long as no Default, Event of Default or Deficiency has occurred and is continuing or will would result therefrom and no Borrowing Base Deficiency then exists and therefrom;
(c) by the Borrowing Base Utilization Percentage is 90% or less after giving effect theretoParent MLP of a redemption of the Preferred Stock, then so long as (i) the Borrower may declare no Default, Event of Default or Deficiency has occurred and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantoris continuing or would result therefrom, (ii) after giving effect to such redemption of Preferred Stock on a pro forma basis, the Borrower may declare and pay dividends Parent MLP shall be in compliance with respect to its Equity Interests payable solely the covenants set forth in additional shares Section 9.01 as of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes of Section 9.01, as if such redemption of the Preferred Stock, and accordance with the Series A all other redemption of Preferred Stock Agreement and Series B Preferred Stock Agreement since the first day of such applicable period, had been redeemed on the first day of such applicable period), and (iii) after giving effect to such redemption of Preferred Stock, the Parent MLP shall have demonstrated that do it will have unrestricted cash liquidity (including, for purposes of this computation, the Unused Amount that is then available for borrowing) in an amount not exceed less than 10% of the Aggregate Elected Revolving Commitment Amount;
(d) by the Parent MLP of a redemption of the Series B Preferred Stock in connection with a mandatory redemption upon a Series B Change of Control, so long as all Loans, all interest thereon and all other amounts required payable by the Borrower hereunder and under the other Loan Documents that have become due and payable as a result of such Series A B Change of Control have first been paid in full or such required payments have been waived in accordance with Section 12.04; and
(e) by the Parent MLP of a redemption of the Series B Preferred Stock Agreement (other than a redemption described in clause (d) above), so long as (i) no Default, Event of Default or Deficiency has occurred and is continuing or would result therefrom, (ii) after giving effect to such redemption of Series B Preferred Stock on a pro forma basis (x) the Parent MLP shall be in compliance with the covenant set forth in Section 9.01(b) and (y) the ratio of Total Debt (excluding the Preferred Stock and the Series B Preferred Stock) as of such time to EBITDAX for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available shall be less than or equal to 2.5 to 1.0, in each case as of the last day of the applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes hereof, as if such redemption of the Series B Preferred Stock, and all other redemption of Preferred Stock and Series B Preferred Stock Agreementsince the first day of such applicable period, as applicablehad been redeemed on the first day of such applicable period), and (ixiii) after giving effect to such redemption of Series B Preferred Stock, the Borrower may make Restricted Payments to Parent Guarantor MLP shall have demonstrated that it will have unrestricted cash liquidity (including, for purposes of this computation, the Unused Amount that is then available for borrowing) in an amount not less than 20% of the Aggregate Elected Revolving Commitment Amount. Parent MLP shall not amend or modify the terms of Annex B of the Parent MLP LPA, if such amendment or modification would (x) amend or modify the requirement set forth in paragraph 11(b)(iv) of such Annex B such that any redemption payable in cash pursuant thereto shall be subject to exceed $8,000,000 the prior payment of any Indebtedness then due as a result of the event resulting in any fiscal year the Series B Change of Control triggering such redemption or (the "Total Costs Cap"y) provide for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000."
P. Section 9.12 mandatory redemption of the Credit Agreement is amended to read in its entirety as follows:Series B Preferred Stock for any consideration other than capital stock or other equity interests upon the happening of any event other than a Series B Change of Control.
Appears in 2 contracts
Samples: Credit Agreement (Black Stone Minerals, L.P.), Credit Agreement (Black Stone Minerals, L.P.)
Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, pay any dividend or agree to pay or make, directly or indirectly, any Restricted Paymentdistribution, return any capital to its stockholders, members or partners or make any distribution of its Property assets to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then (i) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costsmembers; provided, however, that Borrower may make (i) Permitted Tax Distributions and (ii) not more than one distribution to its members per fiscal quarter, commencing with the fiscal quarter ending September 30, 2007, which when aggregated with any prior distributions made during the immediately preceding three fiscal quarters, shall not exceed one hundred percent (100%) of Borrower's Consolidated Net Income (less any Permitted Tax Distributions) during the 4 fiscal quarters immediately preceding the fiscal quarter in which such distribution is made if, and to the extent that, (A) Administrative Agent has received the Compliance Certificate required by Section 8.01 for the fiscal quarter immediately preceding the quarter in which such distribution is made, (B) no Default exists or would result therefrom, including on a proforma basis under Section 9.11, (C) after giving effect to such distribution, there exist availability under the then effective Borrower Base of at least 20% of such Borrowing Base and a borrowing of at least 20% of the available Borrowing Base would not cause a Default, and (D) such distribution would not impair the ability of Borrower to meet its obligations under this Agreement. Prior to Borrower making any distribution as permitted under clause (ii) in the event preceding sentence, Borrower shall provide to Administrative Agent a certificate of a Responsible Officer, in form and substance satisfactory to Administrative Agent, certifying that such distribution complies with the Transaction Costs cause terms of this Section and that all conditions permitting such distribution are satisfied. Notwithstanding anything in this Section to the Total Costs contrary, prior to exceed such time as four quarters have elapsed after the Total Costs CapClosing Date, determination of Borrower's Consolidated Net Income shall not be annualized, but rather shall only include Borrower's Consolidated Net Income for actual quarters elapsed during such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000period."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (Isramco Inc)
Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that except
(a) the Borrower may pay a one time cash distribution to Majeed S. Nami promptly following the Effective Date consisting of up to $14,000,000 of proceeds of the Loan so long as after giving effect thereto (i) no Default has occurred and there is continuing or will result therefrom an unused amount of Commitments of at least $5,000,000, (ii) the Debt under the Existing Credit Agreements has been repaid in full, (iii) all amounts required to be paid pursuant to the provisions of Section 6.01(a) have been paid in full, (iv) all Swap Agreements and no Borrowing Base Deficiency then exists put option contracts required to be in effect pursuant to Section 8.16 hereof shall be in effect, and (v) all Swap Agreements to be terminated pursuant to Section 8.17 hereof have terminated and all amounts owed by NRC to the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then counterparties thereto have been paid in full;
(ib) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, Borrower;
(iic) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), ;
(iiid) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, ;
(ive) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, ;
(vf) after the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day occurrence of each six-month periodany Equity Event, the Borrower may make Restricted Payments pursuant to its Equity Interest holders provided that (i) no Default has occurred and accordance with is continuing or would result from the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under making of such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, Restricted Payment and (ixii) after giving effect to the application of the proceeds of such Equity Event, the Revolving Credit Exposure is less than 50% of the Borrowing Base as of the date of such Equity Event; and
(g) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year its Equity Interest holders provided that (i) no Default has occurred and is continuing or would result from the "Total Costs Cap") for the purposes making of (A) paying General and Administrative Costs such Restricted Payment, and (Bii) Transaction Costs; providedafter giving effect to such Restricted Payment, however, that in the event Revolving Credit Exposure is less than 80% of the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, Borrowing Base as of such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000date."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 1 contract
Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that except
(a) the Borrower may pay a one time cash distribution to Majeed S. Nami promptly following the Effective Date consisting of up to $14,000,000 of proceeds of the Loan so long as after giving effect thereto (i) no Default has occurred and there is continuing or will result therefrom an unused amount of Commitments of at least $5,000,000, (ii) the Debt under the Existing Credit Agreements has been repaid in full, (iii) all amounts required to be paid pursuant to the provisions of Section 6.01(a) have been paid in full, (iv) all Swap Agreements and no Borrowing Base Deficiency then exists put option contracts required to be in effect pursuant to Section 8.16 hereof shall be in effect, and (v) all Swap Agreements to be terminated pursuant to Section 8.17 hereof have terminated and all amounts owed by NRC to the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then counterparties thereto have been paid in full;
(ib) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, Borrower;
(iic) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), ;
(iiid) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, ;
(ive) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, ;
(vf) after the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day occurrence of each six-month periodany Equity Event, the Borrower may make Restricted Payments pursuant to its Equity Interest holders provided that (i) no Default has occurred and accordance with is continuing or would result from the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under making of such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicableRestricted Payment, and (ixii) after giving effect to the application of the proceeds of such Equity Event, the Revolving Credit Exposure is less than 50% of the Borrowing Base as of the date of such Equity Event; and
(g) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year its Equity Interest holders provided that (i) no Default has occurred and is continuing or would result from the "Total Costs Cap") for the purposes making of (A) paying General and Administrative Costs such Restricted Payment, and (Bii) Transaction Costs; providedafter giving effect to such Restricted Payment, however, that in the event Revolving Credit Exposure is less than 90% of the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, Borrowing Base as of such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000date."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 1 contract
Dividends, Distributions and Redemptions. The Borrower will notnot declare or pay any dividend, and will not permit purchase, redeem or otherwise acquire for value any of its Subsidiaries to, declare stock now or make, or agree to pay or make, directly or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners stockholders or make any distribution of its Property assets to its Equity Interest holdersstockholders, provided except that:
(a) The Borrower may make dividends, distributions and redemptions to its parent not to exceed $2,800,000 on a one time basis following the Closing Date; provided, however, that so long as no such dividends, distributions and redemptions shall not be permitted hereunder if an Event of Default has occurred and is continuing or will would result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then therefrom; and
(ib) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the The Borrower may make Restricted Payments pursuant dividends, distributions and redemptions to its parent in addition to the amounts set forth in subparagraph (a) of this Section 9.04 so long as the aggregate amount of net dividends, distributions and redemptions (excluding the dividends, distributions and redemptions described in accordance subparagraph (a) of this Section 9.04), when aggregated with stock option plans or other benefit plans for management or employees of the Borrower investments, loans and its Subsidiariesadvances permitted under Section 9.03(i), (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs7,200,000; provided, however, that such dividends, distributions and redemptions shall not be permitted hereunder if an Event of Default has occurred and is continuing or would result therefrom; and provided further, however, that for any dividend, distribution or redemption made by the Borrower to the parent after January 31, 2000, if the Borrowing Base is more than 50% utilized, or if the making of any such dividend, distribution or redemption using the proceeds of a Loan would result in the event Borrowing Base being more than 50% utilized, then no such dividend, distribution or redemption otherwise permitted by this Section 9.04 may be made using the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser proceeds of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000a Loan hereunder."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 1 contract
Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners stockholders or make any distribution of its Property to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then except (i) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (iia) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock (other than Disqualified Capital Stock), (iiib) so long as no Event of Default shall have occurred which is continuing, the Borrower may declare and pay annual cash dividends not to exceed $0.25 per common share on an annual basis, (c) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (ivd) the Borrower may make Restricted Payments pursuant to and in accordance with restricted stock plans, stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, Subsidiaries and (ve) the Borrower may make the Performance Payments Rights Distributioninterest payments and principal payments on any and all issued and sold Senior Convertible Notes and deliver cash, stock, or any combination thereof upon payment, settlement upon conversion (viwhether a general or a net share settlement), or redemption of any and all issued and sold Senior Convertible Notes so long as (i) the Borrower may make the Cote de Mer Distributionall such cash payments, (vii) the Borrower may make Lx Xxxxxx Distributionsettlements upon conversions, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and redemptions are in accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under terms of the Senior Convertible Notes indenture, (ii) no Default shall exist or be occasioned by such Series A Preferred Stock Agreement and Series B Preferred Stock Agreementpayments, as applicablesettlements upon conversions, or redemptions, and (ixiii) with respect to any such cash redemptions of such Senior Convertible Notes on the put date occurring on April 1, 2012, after giving effect to such cash redemptions (x) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap availability under this Agreement shall be increased by no less than the lesser of (1) 10% of the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and Borrowing Base or (2) $1,000,000."
P. Section 9.12 75,000,000 and (y) both before and after giving effect to such cash redemptions, the Borrower’s ratio of Total Debt to EBITDA for the four fiscal quarters ending on the last day of the Credit Agreement is amended to read in its entirety as follows:fiscal quarter immediately preceding the date Houston 3921802v.12
Appears in 1 contract
Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and therefrom, no Borrowing Base Deficiency then exists or results therefrom and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then (i) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month perioda month, the Borrower may make Restricted Payments Payments, directly or indirectly, to Yuma Energy, Inc., to permit Yuma Energy, Inc. to pay dividends in connection with the Series A Preferred Stock pursuant to and accordance with the Certificate of Determination or other agreement governing the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement Stock, that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicableCertificate of Determination, and (ixvi) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "“Total Costs Cap"”) for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:”
Appears in 1 contract
Samples: Credit Agreement (Yuma Energy, Inc.)
Dividends, Distributions and Redemptions. The Except for stock dividends, Borrowers shall not declare or pay any dividend or other distribution (whether in cash or in kind) on any class of their stock (if a Borrower will notis a corporation) or on account of any equity interest in Borrowers (if a Borrower is a partnership, limited liability company or other type of entity) or redeem or repurchase shares of their respective stock, except that any Borrower may pay any dividend to its Parent provided such Parent is another of the Borrowers, and will not permit any of except that Coast Delaware may pay cash dividends or repurchase or redeem its Subsidiaries tooutstanding capital stock in each case, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that so long as (i) no Event of Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then (i) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantorcontinuing, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares no Event of its Equity Interests (other than Disqualified Capital Stock)Default would occur as a result of such dividend payment or stock redemption or repurchase, (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interestssuch dividend payment, stock redemption or repurchase is permitted under all applicable laws, (iv) the Borrower may make Restricted Payments pursuant immediately after giving effect to such dividend payment or stock redemption or repurchase, Borrowers have Excess Availability of not less than $3,000,000 and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make aggregate amount of dividends paid in any Fiscal Year plus the Performance Payments Rights Distribution, aggregate amount of payments to redeem or repurchase stock of Borrowers in that same Fiscal Year shall not exceed the lesser of (vix) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes sum of (A) paying General and Administrative Costs and 50% of Borrowers’ Net Income for the prior Fiscal Year, plus (B) Transaction Coststhe amount of any “Permitted Carryforward” (as defined below), and (y) Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000) (the “Redemption/Dividend Limit”); provided, howeverprovided further, that in the event Borrowers do not expend the Transaction Costs cause entire Redemption/Dividend Limit in any Fiscal Year, Borrowers may carry forward to succeeding Fiscal Years one hundred percent (100%) of the Total Costs unused portion of the Redemption/Dividend Limit (the “Permitted Carryforward”); provided further, for the Fiscal Year 2005, the aggregate amount of dividends paid plus the aggregate amount of payments to redeem or repurchase stock of the Borrowers in such Fiscal Year shall not exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1a) the amount by which sum of (A) 50% of Borrowers’ Net Income for the Transaction Costs cause the Total Costs to exceed Fiscal Year 2004, plus (B) Two Million and No/100 Dollars ($8,000,000 2,000,000.00) and (2b) Seven Million Five Hundred Thousand and No/100 Dollars ($1,000,0007,500,000.00)."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 1 contract
Samples: Loan and Security Agreement (Coast Distribution System Inc)
Dividends, Distributions and Redemptions. The Borrower Repayment of ------------------------------------------------------ Secured Notes; Refinancing of Enron Prepay Obligation. -----------------------------------------------------
(a) EEX will not declare or pay any dividend, purchase, redeem or otherwise acquire for value any of its common or preferred stock now or hereafter outstanding, return any capital to its stockholders or make any distribution of its assets to its stockholders; provided that EEX may (i) declare and make dividend payments or other distributions payable solely in common or preferred stock (other than Disqualified Capital Stock); and (ii) purchase, redeem, acquire, cancel, or retire for value common stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire common stock of EEX held by any existing or former directors, employees or management of EEX or any Subsidiary of EEX or their assigns, estates or heirs, in each case in connection with the repurchase provisions under employee stock option or stock purchase agreements or other agreements to compensate management employees in effect prior to the date hereof; provided that such redemptions or repurchases pursuant to this clause (ii) will not exceed $5.0 million in the aggregate for all such redemptions and repurchases.
(b) Each Obligor will not, and will not permit any of its Subsidiaries Subsidiary thereof to, declare prior to the Termination Date: (i) make or makeoffer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to the Secured Notes or the Junior Capital that is debt, if any; provided that EEX may prepay the Secured Notes with the proceeds of (A) the sale of all or part of the FPS and/or (B) the issuance of Junior Capital, so long as (x) the Secured Notes are retired at a discount to face amount of 10% or more and (y) in the case of the first issuance of Junior Capital, at least 75% of the Secured Notes outstanding on the Closing Date is retired with the net cash proceeds from such issuance or, in the case of the second issuance of Junior Capital, the entire amount of Secured Notes then outstanding is retired with the net cash proceeds from such issuance, or (ii) amend, modify, waive or otherwise change, consent or agree to pay any amendment, modification, waiver or make, directly or indirectlyother change to, any Restricted Paymentof the terms of the EEX Note, return FPS Capital Indenture, the Secured Notes or the Junior Capital if (A) the effect thereof would be to shorten the maturity or increase the amount of any capital payment of principal thereof or increase the rate or shorten any period for payment of interest thereon, (B) such action requires the payment of a consent fee in excess of 1.00% of the stated principal amount of the Secured Notes or the Junior Capital that is debt, if any (provided that if a Default is continuing, then no consent fee shall be payable), or (C) the effect thereof would be to its stockholderssecure the Secured Notes or the Junior Capital that is debt, members if any, with collateral other than the FPS or partners to provide guarantees by any Person.
(c) EEX E&P may pay off or make any distribution refinance the Enron Prepay Obligation from proceeds of its Property to its Equity Interest holdersDebt or equity issuances, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then (i) the Borrower may declare Required Lenders shall have the right to promptly request delivery of a Reserve Report and pay cash distributions the Lenders shall be offered the right of first refusal to its direct and indirect Equity Interest holders provide such Debt refinancing as follows: the Obligors shall cause prompt notice to permit such holders to pay federal and state taxes due with respect be given to the income Agents and Lenders regarding the proposed terms of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each sixpay-month period, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:off or
Appears in 1 contract
Samples: Credit Agreement (Eex Corp)
Dividends, Distributions and Redemptions. The Parent MLP and the Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, declare or makepay any dividend, purchase, redeem or agree to pay otherwise acquire for value any of its capital or make, directly partnership interests now or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners Partners or make any distribution of its Property assets to its Equity Interest holdersPartners, provided that except for any such dividend, distribution or redemption (collectively, “Distributions”)
(a) by any Restricted Subsidiary to the Parent MLP or to any other Restricted Subsidiary;
(b) by the Parent MLP, other than a redemption of the Preferred Stock or the Series B Preferred Stock, so long as (i) no Default, Event of Default or Deficiency has occurred and is continuing or will would result therefrom therefrom, and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less (ii) after giving effect theretoto such Distribution on a pro forma basis (x) the Parent MLP shall have demonstrated that the Unused Amount is not less than 10% of the then current Aggregate Elected Revolving Commitment Amount, then and (y) the ratio of Total Debt (excluding the Preferred Stock and the Series B Preferred Stock) as of such time to EBITDAX for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available shall be less than or equal to 3.0 to 1.0 as of the last day of the applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes hereof, as if such Distribution, and all other Distributions since the first day of such applicable period, had been made on the first day of such applicable period);
(c) by the Parent MLP of a redemption of the Preferred Stock, so long as (i) the Borrower may declare no Default, Event of Default or Deficiency has occurred and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantoris continuing or would result therefrom, (ii) after giving effect to such redemption of Preferred Stock on a pro forma basis, the Borrower may declare and pay dividends Parent MLP shall be in compliance with respect to its Equity Interests payable solely the covenants set forth in additional shares Section 9.01 as of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes of Section 9.01, as if such redemption of the Preferred Stock, and accordance with the Series A all other redemption of Preferred Stock Agreement and Series B Preferred Stock Agreement since the first day of such applicable period, had been redeemed on the first day of such applicable period), and (iii) after giving effect to such redemption of Preferred Stock, the Parent MLP shall have demonstrated that do it will have unrestricted cash liquidity (including, for purposes of this computation, the Unused Amount that is then available for borrowing) in an amount not exceed less than 10% of the Aggregate Elected Revolving Commitment Amount;
(d) by the Parent MLP of a redemption of the Series B Preferred Stock in connection with a mandatory redemption upon a Series B Change of Control, so long as all Loans, all interest thereon and all other amounts required payable by the Borrower hereunder and under the other Loan Documents that have become due and payable as a result of such Series A B Change of Control have first been paid in full or such required payments have been waived in accordance with Section 12.04; and
(e) by the Parent MLP of a redemption of the Series B Preferred Stock Agreement (other than a redemption described in clause (d) above), so long as (i) no Default, Event of Default or Deficiency has occurred and is continuing or would result therefrom, (ii) after giving effect to such redemption of Series B Preferred Stock on a pro forma basis (x) the Parent MLP shall be in compliance with the covenant set forth in Section 9.01(b) and (y) the ratio of Total Debt (excluding the Preferred Stock and the Series B Preferred Stock) as of such time to EBITDAX for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available shall be less than or equal to 2.5 to 1.0, in each case as of the last day of the applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes hereof, as if such redemption of the Series B Preferred Stock, and all other redemption of Preferred Stock and Series B Preferred Stock Agreementsince the first day of such applicable period, as applicablehad been redeemed on the first day of such applicable period), and (ixiii) after giving effect to such redemption of Series B Preferred Stock, the Borrower may make Restricted Payments to Parent Guarantor MLP shall have demonstrated that it will have unrestricted cash liquidity (including, for purposes of this computation, the Unused Amount that is then available for borrowing) in an amount not less than 20% of the Aggregate Elected Revolving Commitment Amount. Parent MLP shall not amend or modify the terms of Annex B of the Parent MLP LPA, if such amendment or modification would (x) amend or modify the requirement set forth in paragraph 11(b)(iv) of such Annex B such that any redemption payable in cash pursuant thereto shall be subject to exceed $8,000,000 the prior payment of any Indebtedness then due as a result of the event resulting in any fiscal year the Series B Change of Control triggering such redemption or (the "Total Costs Cap"y) provide for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000."
P. Section 9.12 mandatory redemption of the Credit Agreement is amended to read in its entirety as follows:Series B Preferred Stock for any consideration other than capital stock or other equity interests upon the happening of any event other than a Series B Change of Control.
Appears in 1 contract
Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and therefrom, no Borrowing Base Deficiency then exists or results therefrom and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then (i) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month perioda month, the Borrower may make Restricted Payments Payments, directly or indirectly, to Yuma Energy to permit Yuma Energy to pay dividends in respect of (x) its Series A Preferred Stock pursuant to and accordance with the Certificate of Determination or other agreement governing the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Certificate of Determination and (y) any Additional Series A Preferred Stock Agreement pursuant to and accordance with any applicable certificate of determination or other agreement governing such Additional Series B Preferred Stock Agreement, as applicablethat do not exceed amounts required under such certificate of determination, and (ixvi) the Borrower may make Restricted Payments to Yuma Energy or Parent Guarantor in an amount not to exceed (x) $9,000,000 in the fiscal year ending December 31, 2014 or (y) $8,000,000 in any other fiscal year (the "“Total Costs Cap"”) for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $9,000,000 in the fiscal year ending December 31, 2014 or $8,000,000 in any other fiscal year and (2) $1,000,000."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:”
Appears in 1 contract
Samples: Credit Agreement (Yuma Energy, Inc.)
Dividends, Distributions and Redemptions. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners unitholders or make any distribution of its Property to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then except: (i) the Borrower may declare and pay cash dividends or distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in 733476286 14464587 additional shares of its Equity Interests (other than Disqualified Capital StockStock but including cash in lieu of fractional Equity Interests to the extent of Available Cash), (iiiii) Subsidiaries may declare and pay dividends or distributions ratably with respect to their Equity Interests, (iii) so long as (A) no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing or would result therefrom (after giving effect to such dividend or distributions and any redetermination of the Borrowing Base as a result of such dividend) and (B) the Borrower would have unused borrowing capacity that can be accessed under this Agreement in an amount not less than 10% of the amount of the Loan Limit in effect at such time, the Borrower may declare and pay, or incur a liability to make, quarterly cash distributions in an amount equal to Available Cash (provided that subclause (B) shall not apply to any quarterly cash distributions made by the Borrower for the fiscal quarter ending March 31, 2018 (to be paid on or before May 31, 2018))[Intentionally Omitted], (iv) the Borrower may make Restricted Payments pursuant to and issuances and/or sales of Equity Interests (other than Disqualified Capital Stock) in accordance with stock option plans the Borrower in exchange for, or other benefit plans for management purchase or employees of redemption of, Equity Interests in the Borrower and cash payments in lieu of the issuance of fractioned Equity Interests in connection therewith as a split or other distribution of Equity Interests where the distributions are made on a pro rata basis to all of its Subsidiariesequity holders, (v) the Borrower may make repurchase its Equity Interests in connection with the Performance Payments Rights Distributionadministration of any long-term incentive plan, including (A) in connection with the cashless exchange of unit options, (B) the repurchase of restricted units from employees, directors and other recipients under such plan at nominal values, and (C) the repurchase of Equity Interests from employees, directors and other recipients to satisfy federal, state or local tax withholding obligations of such employees, directors and other recipients with respect to income deemed earned as the result of options, unit grants or other awards made under such plan, and (vi) the payment of reasonable compensation, fees and expenses (as determined by the Borrower) to, and indemnity provided on behalf of, the General Partner and directors, officers and employees of the General Partner, the Borrower may make the Cote de Mer Distributionor any Subsidiary, and (vii) so long as no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect to any Borrowings under this Agreement, the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about would have unused borrowing capacity that can be accessed under this Agreement in an amount not less than 15% of the last day amount of each six-month periodthe Borrowing Base in effect at such time, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an aggregate amount not exceeding $10,000,000 prior to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs Maturity Date to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000repurchase or redeem its common Equity Interests."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 1 contract
Dividends, Distributions and Redemptions. The Parent MLP and the Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, declare or makepay any dividend, purchase, redeem or agree to pay otherwise acquire for value any of its capital or make, directly partnership interests now or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners Partners or make any distribution of its Property assets to its Equity Interest holdersPartners, provided that except for any such dividend, distribution or redemption (collectively, “Distributions”) (a) by any Restricted Subsidiary to the Parent MLP or to any other Restricted Subsidiary, and (b) by the Parent MLP, other than a redemption of the Preferred Stock, so long as no Default, Event of Default or Deficiency has occurred and is continuing or will would result therefrom therefrom, and no Borrowing Base Deficiency then exists and (c) by the Borrowing Base Utilization Percentage is 90% or less after giving effect theretoParent MLP of a redemption of the Preferred Stock, then so long as (i) the Borrower may declare no Default, Event of Default or Deficiency has occurred and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantoris continuing or would result therefrom, (ii) after giving effect to such redemption of Preferred Stock on a pro forma basis, the Borrower may declare and pay dividends Parent MLP shall be in compliance with respect to its Equity Interests payable solely the covenants set forth in additional shares Section 9.01 as of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month the applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes of Section 9.01, as if such redemption of the Preferred Stock, and all other redemption of Preferred Stock since the first day of such applicable period, had been redeemed on the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under first day of such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicableapplicable period), and (ixiii) after giving effect to such redemption of Preferred Stock, the Borrower may make Restricted Payments to Parent Guarantor MLP shall have demonstrated that it will have unrestricted cash liquidity (including, for purposes of this computation, the Unused Amount that is then available for borrowing) in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000."
P. Section 9.12 less than 10% of the Credit Agreement is amended to read in its entirety as follows:Aggregate Elected Revolving Commitment Amount.
Appears in 1 contract
Dividends, Distributions and Redemptions. (a) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then except (i) the Borrower may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock), (ii) the Borrower may make Restricted Payments to the Parent and each other Restricted Subsidiary may make Restricted Payments to the Borrower, the Parent or any other Restricted Subsidiary (which, in the case of Restricted Subsidiaries that are not Wholly-Owned Subsidiaries, shall be made to the Parent, to the Borrower or to any Restricted Subsidiary that is the direct or indirect parent of such Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary ratably, based on the relative ownership interests in such Restricted Subsidiary), (iii) Subsidiaries the Parent may declare and pay cash dividends ratably with respect to their on preferred Equity Interests, provided, however, to the extent the cash proceeds of such Equity Issuance were used to make an Investment under Section 9.05(l), such dividends may be paid only to the extent of cash actually received by the Parent as dividends, interest or a return of capital in respect of such Investment and (iv) the Borrower Parent may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for its Restricted Subsidiaries respective management or employees employees.
(b) The Parent and the Borrower will not, and will not permit any Restricted Subsidiary to: (1) prior to the date that is ninety-one (91) days after the Maturity Date, call, make or offer to make any optional or voluntary Redemption of or otherwise optionally or voluntarily Redeem (whether in whole or in part) the Bridge Loans, any Exchange Notes, the Existing Convertible Notes or the Senior Notes except (i) the Existing Convertible Notes or any other convertible Debt instrument may be converted into Equity Interests (other than Disqualified Capital Stock) of the Parent, (ii) the Parent may make cash payments to the holders of the Existing Convertible Notes to induce such holders to convert the Existing Convertible Notes into Equity Interests of the Parent or (iii) with the proceeds of an Equity Issuance (other than Disqualified Capital Stock) or with Permitted Refinancing Debt and, in the case of the Bridge Loan or any Exchange Notes, with proceeds of the Senior Notes, or (2) amend, modify, waive or otherwise change, consent or agree to any amendment, modification, waiver or other change to, any of the terms of any instrument or agreement evidencing or governing any of the Senior Notes if (A) the effect thereof would be to shorten the maturity of such Senior Notes or shorten the average life or increase the amount of any scheduled repayment or mandatory prepayment of principal or increase the interest rate or increase any call, put or prepayment premiums or shorten any period for payment of interest thereon or (B) such action adds any covenants or defaults without this Agreement being contemporaneously amended to add substantially similar covenants or defaults, provided that the foregoing shall not prohibit the execution of supplemental agreements to add guarantors if required by the terms thereof provided that any such guarantor also guarantees the Indebtedness pursuant to the Guaranty Agreement and each of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance such guarantor otherwise complies with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000Section 8.14(b)."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
Appears in 1 contract
Dividends, Distributions and Redemptions. The Borrower will not, and Obligors will not permit declare or pay any dividend, purchase, redeem or otherwise acquire for value any of its Subsidiaries tostock including, declare without limitation, common and preferred stock now or make, or agree to pay or make, directly or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners stockholders or make any distribution of its Property assets to its Equity Interest holdersstockholders, except that:
(a) the Parent may make stock dividends;
(b) each Obligor (other than the Parent) and each Subsidiary (exclusive of the JV's and DDP's) may make distributions or pay dividends (other than in the case of a distribution or dividend to a Borrower) provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then deficiency exists and the Borrowing Base Utilization Percentage is 90% no Default or less after giving effect thereto, then Event of Default exists or would result from such payment or distribution;
(ic) each JV and DDP may make distributions;
(d) the Borrower Parent may declare and pay cash distributions to a one time dividend on its direct and indirect Equity Interest holders to permit such holders to $2.625 Convertible Exchangeable Preferred Stock of the Parent or, in lieu thereof, pay federal and state taxes due with respect a fee or make a distribution to the income shareholders of the Borrower and Parent Guarantorsuch $2.625 Convertible Exchangeable Preferred Stock, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock)either case, (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 4,600,000 and to be paid on or before June 1, 1998, provided that, (i) no Default or Event of Default has occurred and is continuing (or would result therefrom), (ii) no Borrowing Base deficiency exists, (iii) such distribution or -71- dividend is not prohibited under the Indenture (without the necessity of amending the Indenture or obtaining a waiver thereto to specifically allow for such distribution or dividend), (iv) the Term Loans have been paid in full and the Term Notes canceled and, (v) immediately following such distribution, the Threshold Utilization Percentage will not exceed 80%; and
(e) any fiscal year Obligor may make distributions or pay dividends to any Unrestricted Subsidiary, provided that, (the "Total Costs Cap"i) for the purposes no Default or Event of Default has occurred and is continuing (Aor would result therefrom), (ii) paying General and Administrative Costs no Borrowing Base deficiency exists, and (Biii) Transaction Costs; provided, however, that in such distribution or dividend is not prohibited under the event Indenture (without the Transaction Costs cause necessity of amending the Total Costs Indenture or obtaining a waiver thereto to exceed the Total Costs Cap, specifically allow for such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000distribution or dividend)."
P. Section 9.12 of the Credit Agreement is amended to read in its entirety as follows:
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Dividends, Distributions and Redemptions. The Parent MLP and the Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, declare or makepay any dividend, purchase, redeem or agree to pay otherwise acquire for value any of its capital or make, directly partnership interests now or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners Partners or make any distribution of its Property assets to its Equity Interest holdersPartners, provided that except for any such dividend, distribution or redemption (collectively, “Distributions”)
(a) by any Restricted Subsidiary to the Parent MLP or to any other Restricted Subsidiary;
(b) by the Parent MLP, other than a redemption of the Preferred Stock or the Series B Preferred Stock, so long as (i) no Default, Event of Default or Deficiency has occurred and is continuing or will would result therefrom therefrom, and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less (ii) after giving effect theretoto such Distribution on a pro forma basis (x) the Parent MLP shall have demonstrated that the Unused Amount is not less than 10% of the then current Aggregate Elected Revolving Commitment Amount, then and (y) the ratio of Total Debt (excluding the Preferred Stock and the Series B Preferred Stock) as of such time to EBITDAX for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available shall be less than or equal to 3.0 to 1.0 as of the last day of the applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes hereof, as if such Distribution, and all other Distributions since the first day of such applicable period, had been made on the first day of such applicable period);
(c) by the Parent MLP of a redemption of the Preferred Stock, so long as (i) the Borrower may declare no Default, Event of Default or Deficiency has occurred and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantoris continuing or would result therefrom, (ii) after giving effect to such redemption of Preferred Stock on a pro forma basis, the Borrower may declare and pay dividends Parent MLP shall be in compliance with respect to its Equity Interests payable solely the covenants set forth in additional shares Section 9.01 as of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments applicable period covered by the certificate most recently delivered pursuant to Section 8.01(f) (for purposes of Section 9.01, as if such redemption of the Preferred Stock, and accordance with the Series A all other redemption of Preferred Stock Agreement and Series B Preferred Stock Agreement since the first day of such applicable period, had been redeemed on the first day of such applicable period), and (iii) after giving effect to such redemption of Preferred Stock, the Parent MLP shall have demonstrated that do it will have unrestricted cash liquidity (including, for purposes of this computation, the Unused Amount that is then available for borrowing) in an amount not exceed less than 10% of the Aggregate Elected Revolving Commitment Amount;
(d) by the Parent MLP of a redemption of the Series B Preferred Stock in connection with a mandatory redemption upon a Series B Change of Control, so long as all Loans, all interest thereon and all other amounts required payable by the Borrower hereunder and under the other Loan Documents that have become due and payable as a result of such Series A B Change of Control have first been paid in full or such required payments have been waived in accordance with Section 12.04; and
(e) by the Parent MLP of a redemption of the Series B Preferred Stock Agreement (other than a redemption described in clause (d) above), so long as (i) no Default, Event of Default or Deficiency has occurred and is continuing or would result therefrom, (ii) after giving effect to such redemption of Series B Preferred Stock on a pro forma basis (x) the Parent MLP shall be in compliance with the covenant set forth in Section 9.01(b) and (y) the ratio of Total Debt (excluding the Preferred Stock and the Series B Preferred Stock) as of such time to EBITDAX for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available shall be less than or equal to 2.5 to 1.0, in each case as of the last day of the applicable period covered by the certificate most recently delivered pursuant to
Section 8.01 (f) (for purposes hereof, as if such redemption of the Series B Preferred Stock, and all other redemption of Preferred Stock and Series B Preferred Stock Agreementsince the first day of such applicable period, as applicablehad been redeemed on the first day of such applicable period), and (ixiii) after giving effect to such redemption of Series B Preferred Stock, the Borrower may make Restricted Payments to Parent Guarantor MLP shall have demonstrated that it will have unrestricted cash liquidity (including, for purposes of this computation, the Unused Amount that is then available for borrowing) in an amount not less than 20% of the Aggregate Elected Revolving Commitment Amount. Parent MLP shall not amend or modify the terms of Annex B of the Parent MLP LPA, if such amendment or modification would (x) amend or modify the requirement set forth in paragraph 11(b)(iv) of such Annex B such that any redemption payable in cash pursuant thereto shall be subject to exceed $8,000,000 the prior payment of any Indebtedness then due as a result of the event resulting in any fiscal year the Series B Change of Control triggering such redemption or (the "Total Costs Cap"y) provide for the purposes of (A) paying General and Administrative Costs and (B) Transaction Costs; provided, however, that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, such Total Costs Cap shall be increased by the lesser of (1) the amount by which the Transaction Costs cause the Total Costs to exceed $8,000,000 and (2) $1,000,000."
P. Section 9.12 mandatory redemption of the Credit Agreement is amended to read in its entirety as follows:Series B Preferred Stock for any consideration other than capital stock or other equity interests upon the happening of any event other than a Series B Change of Control.
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Dividends, Distributions and Redemptions. (a) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders, members or partners or make any distribution of its Property to its Equity Interest holders, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then except (i) the Borrower Parent may declare and pay cash distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income of the Borrower and Parent Guarantor, (ii) the Borrower may declare and pay dividends make Restricted Payments with respect to its Equity Interests payable solely in with or by issuing additional shares of its Equity Interests (other than Disqualified Capital Stock), (ii) the Borrower may make Restricted Payments to the Parent and each other Restricted Subsidiary may make Restricted Payments to the Borrower, the Parent or any other Restricted Subsidiary (which, in the case of Restricted Subsidiaries that are not Wholly-Owned Subsidiaries, shall be made to the Parent, to the Borrower or to any Restricted Subsidiary that is the direct or indirect parent of such Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary ratably, based on the relative ownership interests in such Restricted Subsidiary), (iii) Subsidiaries the Parent may declare and pay cash dividends ratably with respect to their on preferred Equity Interests, provided, however, to the extent the cash proceeds of such Equity Issuance were used to make an Investment under Section 9.05(l), such dividends may be paid only to the extent of cash actually received by the Parent as dividends, interest or a return of capital in respect of such Investment, (iv) the Borrower Parent may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for its Restricted Subsidiaries respective management or employees of the Borrower and its Subsidiariesemployees, (v) the Borrower Parent may make aggregate cash payments on or prior to the Performance Payments Rights Distributionapplicable maturity date to the holders of preferred Equity Interests to induce such holders to convert such preferred Equity Interests into common Equity Interests of the Parent, provided that before and after giving effect to each such payment, no Default or Event of Default existed or would result and the Borrower will have (after giving effect to such payment) unused availability under this Agreement of not less than 15% of the then current Borrowing Base, and (vi) the Borrower Parent may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor customary payments in cash in an aggregate amount not to exceed $8,000,000 10,000,000 in lieu of fractional shares in connection with the conversion to or exchange for Equity Interests.
(b) The Parent and the Borrower will not, and will not permit any fiscal year Restricted Subsidiary to: (1) prior to the "Total Costs Cap"date that is ninety-one (91) for days after the purposes Maturity Date, call, make or offer to make any optional or voluntary Redemption of or otherwise optionally or voluntarily Redeem (whether in whole or in part) the Existing Convertible Notes, the Existing 2014 Notes or any Permitted Additional Debt except (i) the Existing Convertible Notes or any other convertible Debt instrument may be converted into Equity Interests (other than Disqualified Capital Stock) of the Parent, (ii) the Parent may make cash payments to the holders of the Existing Convertible Notes to induce such holders to convert the Existing Convertible Notes into Equity Interests of the Parent, (iii) with the proceeds of an Equity Issuance (other than Disqualified Capital Stock) or with Permitted Refinancing Debt or (iv), with respect to the Existing 2014 Notes, with cash of the Parent, provided that following such call or Redemption pursuant to subclause (iv), the Parent shall have cash or cash equivalents permitted by Section 9.05 of not less than $175,000,000 (such cash or cash equivalents not subject to any Lien) if such Redemption occurs prior to October 6, 2011 or (B) $100,000,000 (such cash or cash equivalents not subject to any Lien) thereafter, or (2) amend, modify, waive or otherwise change, consent or agree to any amendment, modification, waiver or other change to, any of the terms of any instrument or agreement evidencing or governing the Existing 2014 Notes or any Permitted Additional Debt if (A) paying General and Administrative Costs and the effect thereof would be to shorten the maturity of such Existing 2014 Notes or any Permitted Additional Debt or shorten the average life or increase the amount of any scheduled repayment or mandatory prepayment of principal or increase the interest rate or increase any call, put or prepayment premiums or shorten any period for payment of interest thereon or (B) Transaction Costs; providedsuch action adds any covenants or defaults without this Agreement being contemporaneously amended to add substantially similar covenants or defaults, however, provided that in the event foregoing shall not prohibit the Transaction Costs cause the Total Costs execution of supplemental agreements to exceed the Total Costs Cap, such Total Costs Cap shall be increased add guarantors if required by the lesser of (1) terms thereof provided that any such guarantor also guarantees the amount by which Indebtedness pursuant to the Transaction Costs cause the Total Costs to exceed $8,000,000 Guaranty Agreement and (2) $1,000,000."
P. Section 9.12 each of the Credit Agreement is amended to read in its entirety as follows:Borrower and such guarantor otherwise complies with Section 8.14(b).
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Dividends, Distributions and Redemptions. The Borrower will notWithout the written approval of the Majority Lenders, and will the Parent Company shall not permit declare or pay any dividend, purchase, redeem or otherwise acquire for value any of its Subsidiaries to, declare capital stock now or make, or agree to pay or make, directly or indirectly, any Restricted Paymenthereafter outstanding, return any capital to its stockholders, members or partners stockholders or make any distribution of its Property assets to its Equity Interest holdersstockholders, provided that so long as no Default has occurred and is continuing or will result therefrom and no Borrowing Base Deficiency then exists and the Borrowing Base Utilization Percentage is 90% or less after giving effect thereto, then except for :
(i) the Borrower may declare and pay cash dividends or distributions to its direct and indirect Equity Interest holders to permit such holders to pay federal and state taxes due with respect to the income payable solely in capital stock of the Borrower and Parent Guarantor, Company;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional repurchase or redemption of any shares of its Equity Interests (other than Disqualified Capital Stock), (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (v) the Borrower may make the Performance Payments Rights Distribution, (vi) the Borrower may make the Cote de Mer Distribution, (vii) the Borrower may make Lx Xxxxxx Distribution, (viii) once every six months on or about the last day of each six-month period, the Borrower may make Restricted Payments pursuant to and accordance Series C Preferred Stock with the Series A Preferred Stock Agreement and Series B Preferred Stock Agreement aggregate net cash proceeds in excess of $50,000,000 of any Equity Offering(s) occurring after April 17, 1998 provided that do not exceed amounts required under such Series A Preferred Stock Agreement and Series B Preferred Stock Agreement, as applicable, and (ix) the Borrower may make Restricted Payments to Parent Guarantor in an amount not to exceed $8,000,000 in any fiscal year (the "Total Costs Cap") for the purposes of (A) paying General and Administrative Costs no Default or Event of Default has occurred at the time such shares are repurchased or redeemed or would result from such repurchase or redemption and (B) Transaction Costsno Loan is outstanding immediately prior and after giving effect to such repurchase or redemption; providedand
(iii) the one time repurchase or redemption of shares of the Series C Preferred Stock from one or more of Starx Xxxernational, howeverShepxxx Xxxestments International Ltd., and Palisades Holdings, Inc., provided that in the event the Transaction Costs cause the Total Costs to exceed the Total Costs Cap, (A) such Total Costs Cap repurchase or redemption shall be increased by made only with the lesser cash proceeds of a common stock Equity Offering, (1B) the aggregate amount by which the Transaction Costs cause the Total Costs to paid for such repurchase or redemption shall not exceed $8,000,000 2,300,000, including the payment of accrued dividends, (C) the maximum price per share (including accrued dividends) paid for such purchase or redemption shall not exceed $7.35, (D) such repurchase or redemption shall occur on or before December 31, 1998, (E) no Default or Event of Default has occurred at the time such shares are repurchased or redeemed or would result from such repurchase or redemption and (2F) $1,000,000no Loan is outstanding immediately prior and after giving effect to such repurchase or redemption. Notwithstanding anything to the contrary in this Section 5.8 and without limiting the Agent's and Lenders' rights under Sections 6.1(k) and 6.2, the Parent Company may, after giving the Agent 5 Business Days' prior written notice thereof, effect mandatory redemptions and cash payments payable upon Parent Company defaults pursuant to the Certificate of Designation governing the Series C Preferred Stock."
P. 2.2 Section 9.12 of the Credit Agreement 5.15. Section 5.15 is hereby amended to read by replacing such section in its entirety as followswith the following:
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