Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that: (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock; (ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower; (iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; and (iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.
Appears in 3 contracts
Samples: Credit Agreement (Inacom Corp), Credit Agreement (Inacom Corp), Credit Agreement (Inacom Corp)
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may beBorrower) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockRecapitalization shall be permitted;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;; and
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Common Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase Common Stock held by former employees of the Borrower and or any of its Subsidiaries arising following the termination of their employment, provided that (x) the only consideration paid by the Borrower in respect of such redemptions and/or purchases shall be cash, Shareholder Subordinated Notes and/or cancellation of Indebtedness owing to the Borrower from such employees, (y) the sum of (1) the aggregate amount of cash paid by the Borrower in respect of all such redemptions and/or purchases plus (2) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes shall not exceed (A) $250,000 in any fiscal year of the Borrower ending on or prior to its fiscal year ending closest to March 31, 2000 and (B) $1,000,000 in any fiscal year of the Borrower thereafter, provided that each such amount shall be increased by an amount (not to exceed (I) $250,000 in the case of any fiscal year of the Borrower ending on or prior to its fiscal year ending closest to March 31, 2000 or (II) $1,000,000 in the case of any fiscal year of the Borrower thereafter, in either case for purposes of this clause (iii)) equal to the cash proceeds received by the Borrower after March 27, 1999 the Effective Date from the sale or issuance of Common Stock to management of the Borrower or any of its Subsidiaries and computed on a cumulative consolidated basis, provided, that, immediately after giving effect (z) at the time of any payment permitted to such proposed actionbe made pursuant to this Section 8.06, no Default or Event of Default would existshall then exist or result therefrom; and
(iv) Vanstar Financing Trust the Borrower may declare and pay regularly accruing cash dividends scheduled Dividends on the Trust Qualified Preferred Securities in accordance with Stock pursuant to the terms thereof solely through the issuance of additional shares of such Qualified Preferred Stock, provided that in an amount not to exceed $9,000,000 lieu of issuing additional shares of such Qualified Preferred Stock as Dividends, the Borrower may increase the liquidation preference of the shares of Qualified Preferred Stock in any fiscal yearrespect of which such Dividends have accrued.
Appears in 2 contracts
Samples: Credit Agreement (Therma Wave Inc), Credit Agreement (Therma Wave Inc)
Dividends, Etc. (a) The Borrower will not, and will not permit --------------- any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders stockholders, members and/or other owners or authorize or make any other distribution, payment or delivery of property or cash to its stockholders stockholders, members and/or other owners as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock or other ownership interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock or other ownership interests of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary may pay dividends or return capital or make distributions and other similar payments with regard to its capital stock or other membership interests to the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockanother Subsidiary;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of its Subsidiaries may purchase the BorrowerMinority Shares for an aggregate purchase price not to exceed $750,000;
(iii) the Borrower, STE or Xxxxxx Telephone may retire or redeem all the Existing Warrants on or after the Closing Date with the proceeds of Loans for the price required by the terms thereof, provided that none of the Borrower, STE or Xxxxxx Telephone shall voluntarily agree to a price to be paid for the Existing Warrants (as opposed to a determination of such price by third parties as provided in the Existing Warrants) without the consent of the Agents (which consent shall not be unreasonably withheld);
(iv) the Preferred Repurchase shall be permitted to be effected; and
(v) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares repurchase its stock (or options, warrants and/or appreciation rights in respect thereof) from shareholders, officers, employees, consultants and directors (or their estates) upon the death, permanent disability, retirement or termination of its capital stock or warrants, rights or options to acquire employment of any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27Person or otherwise in accordance with any shareholder agreement, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, stock option plan or any employee stock ownership plan provided that (x) no Default or Event of Default is then in existence or would existarise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares, options, warrants and rights so redeemed or repurchased in any calendar year, does not exceed $1 million;
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist (other than as a result of a requirement of law) any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (B) the ability of any Subsidiary to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; and
(ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) Vanstar Financing Trust may declare any restriction or encumbrance with respect to a Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; (v) Liens permitted under Sections 7.03(d), (m) and/or (n) and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with any documents or instruments governing the terms thereof of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens and (vi) any agreement or instrument governing Permitted Acquired Debt, to the extent such restriction or encumbrance (x) is not applicable to any Person or the properties or assets of any Person (other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition) and (y) was not created (or made more restrictive) in an amount not to exceed $9,000,000 connection with or in any fiscal yearanticipation of the respective Permitted Acquisition.
Appears in 2 contracts
Samples: Credit Agreement (MJD Communications Inc), Credit Agreement (MJD Communications Inc)
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Borrower Common Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase Borrower Common Stock, as the case may be, held by former employees of the Borrower and or any of its Subsidiaries arising following the termination of their employment, PROVIDED that (w) the only consideration paid by the Borrower in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases, plus (B) the aggregate amount of liabilities so forgiven and (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Original Effective Date, 1999 shall not exceed $5,000,000, and computed on (y) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom;
(iii) so long as no Default or Event of Default exists or would existresult therefrom, the Borrower may pay regularly accruing cash Dividends on Disqualified Preferred Stock (excluding in any event PIK Preferred Stock) issued pursuant to Section 9.13(c), with such Dividends to be paid in accordance with the terms of the respective certificate of designation therefor; and
(iv) Vanstar Financing Trust the Borrower may declare and pay regularly accruing cash dividends on Dividends with respect to the Trust PIK Preferred Securities Stock through the issuance of additional shares of PIK Preferred Stock in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearthereof.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Imaging Inc /De/), Credit Agreement (Alliance Imaging Inc /De/)
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in such entity's common stock or preferred stock (provided such preferred stock meets the requirements of the Borrower or any such SubsidiarySection 9.13(c)(ii), as the case may be(iii), (iv) and (v)) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as Subsidiary of the case may be, Borrower now or hereafter outstanding (or any options or warrants or such stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"," it being understood that the payments made in accordance with the clauses contained in the proviso of Section 9.06 shall not be deemed to be Dividends), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiib) as long as no Default or Event of Default shall then exist or result therefrom the Borrower may declare and pay a cash Dividend on the Borrower's Common Stock in fiscal year ending March 31, 2003 in an amount equal to $5,000,000 plus that portion of the Retained Amount in such fiscal year not otherwise invested in Senior Notes pursuant to Section 9.05(n), and thereafter to the extent of the Retained Amount in such fiscal year and not otherwise invested in Senior Notes pursuant to Section 9.05(n); provided that any amounts not used in any fiscal year can be carried forward and used in succeeding fiscal years of the Borrower;
(c) the Borrower, any Subsidiary of the Borrower or the Spinoff Guarantor may make payments to Holdings in an amount not in excess of the federal and state (in such states that permit consolidated or combined tax returns) income tax liability that the Borrower, the Borrower's Subsidiaries or the Spinoff Guarantor would have been liable for if Holdings, the Borrower and its Subsidiaries had filed their taxes on a stand-alone basis; provided that such payments shall be made by Holdings no earlier than five days prior to the date on which Holdings is required to make its payments to the Internal Revenue Service or the applicable taxing authority, as applicable;
(d) if no Default or Event of Default shall have occurred and be continuing, the Borrower may declare and pay cash dividends Dividends to its stockholders Holdings so that Holdings may repurchase Holdings Common Stock (or rights to acquire Holdings Common Stock) from members of Holdings' or the Borrower's management in connection with certain executive employment agreements in an aggregate amount not to exceed $1,000,000 in any fiscal year; provided that any amounts not used in any fiscal year can be carried forward and purchaseused in the immediately succeeding fiscal year;
(e) if no Default or Event of Default shall have occurred and be continuing, redeem the Borrower may declare and pay Dividends to Holdings to pay reasonable accounting fees and other support services provided to or otherwise acquire shares for the benefit of the Borrower and/or any of its capital Subsidiaries and to pay Holdings' operating expenses, in an aggregate amount not to exceed $1,000,000 in any fiscal year;
(f) Borrower may declare and pay Dividends to Holdings (i) in connection with any payment obligations (including administration costs and expenses) under Holdings' stock or warrantsother equity participation purchase program or similar equity based benefits plans offered to employees of Holdings and/or Subsidiaries of Holdings, rights including, without limitation, any employee stock option plan or options to acquire purchase Holdings Common Stock, in an aggregate amount not to exceed $1,000,000 in any such shares for cash solely out of 25% of Net Income fiscal year or (ii) so that Holdings may make loans and advances to employees of the Borrower and its Subsidiaries arising in the ordinary course of business and consistent with past practice, in an aggregate principal amount which, when taken together with the aggregate principal amount of loans and advances (exclusive of loans and advances for moving and travel expenses or relocation expenses incurred in connection with a permitted acquisition) made by the Borrower and its Subsidiaries after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, the Effective Date in accordance with Section 9.05(e) do not exceed $1,500,000 at any one time outstanding;
(g) if no Default or Event of Default would existshall have occurred and be continuing, the Permitted Distribution and Dividends to Holdings in respect of Section 9.06(g) shall be permitted; and
(ivh) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearPermitted Tax Distribution shall be permitted.
Appears in 2 contracts
Samples: Credit Agreement (Appliance Warehouse of America Inc), Credit Agreement (Coinmach Corp)
Dividends, Etc. The Holdings and the Borrower will not, and will -------------- not permit any of its their respective Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock or preferred stock (provided such preferred stock meets the requirements of the Borrower Section 9.13(c)(ii), --------- (iii), (iv) and (v)) of Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as Subsidiary of the case may be, Borrower now or hereafter outstanding (or any options or warrants or such stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends", it being understood that the payments ---------- made in accordance with the clauses contained in the proviso of Section 9.06 shall not be deemed to be Dividends), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;; and
(iiib) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, as long as no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust shall then exist or result therefrom, the Borrower may declare and pay regularly accruing cash dividends a Dividend on the Trust Preferred Securities in accordance with the terms thereof Borrower's Common Stock in an amount not to exceed the amount required for payment of principal and interest under the terms of the CLC Notes provided, that such Dividend is not declared earlier than thirty days prior -------- to such required payment;
(c) Borrower or any Subsidiary of Borrower may make payments to Holdings in an amount not in excess of the federal and state (in such states that permit consolidated or combined tax returns) income tax liability that Holdings, the Borrower and its Subsidiaries would have been liable for if Holdings, the Borrower and its Subsidiaries had filed their taxes on a stand-alone basis; provided that such payments shall be made by -------- Holdings no earlier than five days prior to the date on which Holdings is required to make its payments to the Internal Revenue Service or the applicable taxing authority, as applicable;
(d) if no Default or Event of Default shall have occurred and be continuing, Borrower may declare and pay dividends to Holdings so that Holdings may repurchase Holdings Common Stock (or rights to acquire Holdings Common Stock) from members of Holdings' or the Borrower's management in connection with certain executive employment agreements in an aggregate amount not to exceed $9,000,000 750,000 in any fiscal year;
(e) if no Default or Event of Default shall have occurred and be continuing, Borrower may declare and pay dividends to Holdings to pay reasonable accounting fees and other support services provided to the Borrower and to pay Holdings' operating expenses, in an aggregate amount not to exceed $500,000 in any fiscal year; and
(f) Borrower may declare and pay dividends to Holdings in connection with any payment obligations (including administration costs and expenses) under (i) Holdings' stock purchase program offered to employees of Holdings and/or subsidiaries of Holdings; (ii) the Employee Stock Option Plan; or (iii) options to purchase Holdings Common Stock in an aggregate amount not to exceed $500,000 in any fiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Coinmach Corp), Credit Agreement (Coinmach Laundry Corp)
Dividends, Etc. The Borrower will not, and will not permit any --------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may beBorrower) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for considerationa consideration (other than consideration in the form of capital stock of the Borrower), any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, purposes and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of Holding or the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any warrants for or options or warrants or stock appreciation rights issued by such Person with in respect to its capital stockof any such shares) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower may pay Dividends dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;; and
(iiib) the Borrower may declare or pay cash dividends Dividends to Holding in an amount necessary and to the extent immediately used by Holding to (i) pay accrued fees and expenses arising from the Transaction and/or ongoing reporting and related requirements, (ii) pay taxes payable by Holding (whether for itself alone or for itself and its stockholders Subsidiaries), in each case to the extent then due and purchasepayable and to the extent not otherwise paid by the Borrower pursuant to the Tax Sharing Agreement, redeem or otherwise acquire (iii) repurchase shares of its capital stock of Holding as required pursuant to the ESOP or warrantspursuant to the Shareholders' Agreement, rights or options provided that the repurchase price therefor is -------- available to acquire any such shares for cash solely out of 25% of Net Income of the Borrower from the net proceeds of any benefits paid pursuant to the terms of any life insurance policies covering certain participants in the ESOP and its Subsidiaries arising after March 27certain other executives of Holding and the Borrower, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, (iv) so long as no Default or Event of Default would exist; and
then exists, (ivA) Vanstar Financing Trust may declare pay the repurchase price payable to any officer or employee (or their estates) of Holding, the Borrower or any of its Subsidiaries upon death, disability or termination of employment of such officers and pay regularly accruing cash dividends employees to the extent provided by the terms of any Shareholders' Agreement (including any extension thereof) as in effect on the Trust Preferred Securities date of this Credit Agreement, provided, however, that the aggregate amount of all such repurchases in accordance any -------- ------- fiscal year of the Borrower shall not exceed $5,000,000, (B) pay amounts to repurchase shares of its capital stock (i) from participants who were distributed such shares from, and as required under, the ESOP and (ii) from the ESOP as required by any settlement, judgment, order or decree arising from the DOL Litigation; provided, however, that after giving effect to any -------- ------- such payment, the Borrower is in compliance with the terms thereof Fixed Charge Coverage Ratio, calculated on a pro forma basis as of the end of the most recent fiscal quarter, and (C) make current payments of interest on the Holding Notes or pay principal in an respect of Holding Notes issued in lieu of interest, so long as (x) the Fixed Charge Coverage Ratio calculated for any ---------- period of four consecutive fiscal quarters (or, if shorter, the period beginning on April 1, 2002 and ending on the last day of the last fiscal quarter then ended) in each case taken as one accounting period shall exceed 2:1 and (y) the Borrower would be permitted to make a Restricted Payment under, and as defined in, the New Senior Note Indenture in the amount of such Dividend, provided that the amount of any Dividend paid -------- pursuant to this clause (b)(iv)(C) shall not exceed the Available Amount in effect immediately prior to exceed $9,000,000 in any fiscal yearthe payment of such Dividend.
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, Subsidiary to declare or pay any dividends (other than than, in the case of Holdings, dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may beHoldings) or return any capital to, its stockholders stockholders, equity holders, members or partners or authorize or make any other distribution, payment or delivery of property or cash to its stockholders stockholders, equity holders, members or partners, as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock or equity or partnership interests or membership interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries Subsidiary to purchase or otherwise acquire for consideration any shares of any class of the capital stock or equity or partnership interests or membership interests of the Borrower Holdings or any other such Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its such capital stockstock or membership interests or partnership interests) (all of the foregoing "Dividends"), except that:
that (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or to any Wholly-Owned Subsidiary Guarantor, (ii) Capital Corp may pay cash Dividends to Holdings so long as Holdings shall immediately utilize 100% of the Borrower;
proceeds thereof to (x) promptly pay when due administrative and other customary operating costs and/or (y) make a capital contribution to the Borrower and (iii) the Borrower may declare or pay cash dividends Dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25Holdings so long as Holdings shall immediately utilize 100% of Net Income of the Borrower proceeds thereof to pay when due administrative and its Subsidiaries arising after March 27, 1999 other customary operating costs and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on provided that the Trust Preferred Securities in accordance with the terms thereof in an amount Interests Exchange will not to exceed $9,000,000 in any fiscal yearviolate this Section.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare Declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiarydividends, as the case may be) or return any capital topurchase, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or -------------- redeem, retire, purchase defease or otherwise acquire, directly or indirectly, acquire for consideration, value any shares of any class of its capital stock or any warrants, rights or options to acquire such capital stock, now or hereafter outstanding outstanding, return any capital to its stockholders, partners or members (or the equivalent Persons thereof) as such, make any warrants for distribution of assets, capital stock, warrants, rights, options, obligations or securities to its stockholders, partners or members (or the equivalent Persons thereof) as such or issue or sell any capital stock or any warrants, rights or options or stock appreciation rights in respect of any of to acquire such shares)capital stock, or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase do any of the foregoing, or permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for consideration value any shares of any class of the capital stock of the Borrower or any other Subsidiarywarrants, as the case may be, now rights or hereafter outstanding (options to acquire such capital stock or to issue or sell any capital stock or any warrants, rights or options or warrants or stock appreciation rights issued by to acquire such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that, so long as no Default shall have occurred and be continuing or would result therefrom:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its declare and deliver dividends and distributions payable only in (and to the holders of) common stock or warrants or options to acquire any such shares with of the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;Borrower,
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or and pay cash dividends to its stockholders pursuant to any dividend plan approved in writing by the Required Lenders;
(iii) except to the extent the Net Cash Proceeds thereof are required to be applied to the prepayment of the Advances pursuant to Section 2.05(b), the Borrower and any of its Subsidiaries may purchase, redeem redeem, retire, defease or otherwise acquire shares of such Person's capital stock with the proceeds received from the issuance of its capital stock with equal or warrantsinferior voting powers, rights or options to acquire any such shares for cash solely out of 25% of Net Income of designations, preferences and rights;
(iv) the Borrower and any of its Subsidiaries arising after March 27may issue equity securities upon the exercise of rights to acquire such equity securities but only if the Net Cash Proceeds, 1999 and computed on a cumulative consolidated basisif any, provided, that, immediately after giving effect from the exercise of such rights are applied to such proposed action, no Default or Event the repayment of Default would existAdvances to the extent required pursuant to Section 2.05(b); and
(ivv) Vanstar Financing Trust any Subsidiary may declare and pay regularly accruing cash dividends on to the Trust Preferred Securities in accordance with Borrower or to a Subsidiary of the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearBorrower that is a Loan Party.
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders stockholders, members and/or other owners of Equity Interests as such or authorize or make any other distribution, payment or delivery of property or cash to its stockholders stockholders, members and/or other owners of Equity Interests as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, Equity Interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such sharesEquity Interests), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock Equity Interests of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stockEquity Interests) (all of the foregoing "“Dividends"”), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to the Borrower or any to a Wholly-Owned Subsidiary of the BorrowerBorrower which owns equity therein;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may declare and pay cash Dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the Equity Interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary);
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default exists at the time of the respective Dividend, redemption or repurchase or would existexist immediately after giving effect thereto, the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) to allow Holdings to redeem or repurchase (and Holdings may redeem or repurchase), contemporaneously with such Dividend, Equity Interests of Holdings from officers, employees and directors (or their estates) after the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option plan or any employee stock ownership plan that has been approved by the Board of Directors of Holdings, provided that the principal amount of Dividends made by the Borrower to Holdings pursuant to this clause (iii), and the aggregate amount paid by Holdings in respect of all such Equity Interests so redeemed or repurchased, in any calendar year shall not, in either case, exceed(x) $2,000,000 (the “Repurchase Basket Amount”) plus (y) the sum of (1) the amount of cash equity contributed to Holdings (which, in turn, is contributed to the Borrower) by new officers of Holdings or any of its Subsidiaries, (2) the amount of proceeds received by Qualified Credit Parties from key-man life insurance and (3) any unused portion of the Repurchase Basket Amount from preceding fiscal years;
(iv) the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) so long as the proceeds thereof are promptly used by Holdings to pay operating expenses in the ordinary course of business (including, without limitation, indemnities, professional fees and expenses) and other similar corporate overhead costs and expenses, provided that the aggregate amount of cash Dividends paid pursuant to this clause (iv) during any fiscal year of Holdings shall not exceed $1,000,000;
(v) the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) in the amounts and at the times of any payment by Holdings in respect of taxes, provided that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay Federal and state income taxes at any time shall not exceed the amount of such Federal and state income taxes actually owing by Holdings at such time for the respective period and (y) any refunds received by Holdings shall promptly be returned by Holdings to the Borrower;
(vi) before the occurrence of a Qualified Public Offering, Holdings may pay Dividends with the net cash proceeds of substantially contemporaneous sales or issuances of its capital stock (other than issuances or sales of its capital stock pursuant to a public offering or Qualified Public Offering) to Persons other than its Subsidiaries;
(vii) any non-Wholly-Owned Subsidiary of the Borrower may repurchase or redeem its outstanding minority Equity Interests held by third Persons, provided that the aggregate amount of payments made in respect of all such repurchases and redemptions shall not exceed $1,000,000;
(viii) the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) in the amounts and at the times of any required payments by Holdings (which will actually be paid with such cash Dividends) pursuant to the Management Agreement (including, without limitation, for fees payable in connection with the Transaction), so long as such amounts are then permitted to be paid pursuant to Section 8.09(v) or (vi), as the case may be;
(ix) the Borrower may pay cash Dividends to Holdings on the Restatement Effective Date so Holdings can pay transaction fees described in Section 8.09(vii); and
(ivx) Vanstar Financing Trust Holdings may declare return to Carlyle and pay regularly accruing other Persons cash dividends on equity contributions initially made by Carlyle or such other Persons to Holdings to finance Permitted Acquisitions, Capital Expenditures or investments in Joint Ventures or Foreign Subsidiaries (in each case permitted hereunder), that have not been utilized for such purposes, provided that (i) such cash equity contributions are returned within 180 days following the Trust Preferred Securities in accordance with respective cash equity contribution made by Carlyle or such other Person to Holdings and (ii) such cash equity contributions have not theretofore been contributed by Holdings to the terms thereof in an amount not to exceed $9,000,000 in Borrower or any fiscal yearSubsidiary thereof.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
Dividends, Etc. The No Borrower will, nor will not, and will not any Borrower permit --------------- any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the such Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the no Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the such Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the U.S. Borrower may pay Dividends to the U.S. Borrower or any Wholly-Owned U.S. Subsidiary of Guarantor and any Foreign Subsidiary may pay Dividends to the BorrowerCanadian Borrower or any Canadian Subsidiary Guarantor;
(iiiii) the U.S. Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights U.S. Borrower Common Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase U.S. Borrower Common Stock, as the case may be, held by former employees of the U.S. Borrower and or any of its Subsidiaries arising following the termination of their employment (by death, disability or otherwise), provided that (w) the only consideration paid by -------- the U.S. Borrower in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by the U.S. Borrower in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven and (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Original Effective Date, 1999 shall not exceed $5,000,000, and computed on (y) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default would exist; andshall then exist or result therefrom;
(iviii) Vanstar Financing Trust so long as no Default or Event of Default exists or would result therefrom, the U.S. Borrower may declare and pay regularly accruing cash dividends Dividends on Disqualified Preferred Stock (excluding, at all times prior to the Trust PIK Trigger Date, PIK Preferred Securities Stock) issued pursuant to Section 9.13(c), with such Dividends to be paid in accordance with the terms of the respective certificate of designation therefor;
(iv) so long as no Default or Event of Default exists or would result therefrom, CLC may pay regularly accruing cash Dividends on CLC Preferred Stock, with such Dividends to be paid in accordance with the terms of the CLC Preferred Stock Documents;
(v) any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends to its shareholders or partners generally, so long as the U.S. Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interest in an amount not to exceed $9,000,000 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any fiscal year.agreements applicable thereto);
Appears in 1 contract
Samples: Credit Agreement (MTL Inc)
Dividends, Etc. The Borrower Holdings will not, and will not permit any of --------------- its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the U.S. Borrower may pay Dividends to the U.S. Borrower or any Wholly-Owned Subsidiary of the U.S. Borrower;
(iiia) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock Holdings Common Stock or warrants, rights Holdings Class L Common Stock or options to acquire purchase Holdings Common Stock or Holdings Class L Common Stock, respectively, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment, provided that (w) the only consideration paid by -------- Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $5,000,000 in any fiscal year of Holdings, provided that such amount shall -------- be increased by an amount equal to the proceeds received by Holdings after March 27the Effective Date from the sale or issuance of Holdings Common Stock or Holdings Class L Common Stock, 1999 as the case may be, to management of Holdings or any of its Subsidiaries and computed on (y) at the time of any cash payment permitted to be made pursuant to this Section 8.07(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom; and (b) so long as no Default or Event of Default then exists or would exist; and
result therefrom, any Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (ivii)(a) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.of this Section 8.07;
Appears in 1 contract
Samples: Credit Agreement (Dade Behring Inc)
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds 49 for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends dividends to the Borrower or to a Subsidiary Guarantor; and
(ii) the Borrower may redeem or repurchase Common Stock (or options to purchase such Common Stock) from (1) officers, employees and directors (or their estates) upon the death, permanent disability, retirement or termination of employment of any Wholly-Owned Subsidiary such Person or otherwise in accordance with (x) the Stockholders Agreement and (y) any stock option plan or any employee stock ownership plan, or (2) other stockholders of the Borrower;, so long as the purpose of such purchase is to acquire Common Stock for reissuance to new officers, employees and directors (or their estates) of the Borrower to the extent so reissued within 12 months of any such purchase, provided that in all such cases (A) no Default or Event of Default is then in existence or would arise therefrom and (B) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased in any calendar year does not exceed $2,500,000 plus (I) proceeds of key-man life insurance used for the purposes set forth in subclause (2) and (II) the Available Excess Cash Flow Amount at the time of any such redemption and repurchase (before giving effect thereto) and, provided further, that in the event that the Borrower subsequently resells to any member of its, or any Subsidiary Guarantors', management any shares redeemed or repurchased pursuant to this clause (ii), the amount of repurchases the Borrower may make from Management Investors pursuant to this clause (ii) shall be increased by an amount equal to any cash received by the Borrower upon the resale of such shares; and
(iii) the Borrower may declare pay regularly scheduled Dividends on the PIK Preferred Stock pursuant to the terms thereof through the issuance of additional shares of such PIK Preferred Stock.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make other distributions or pay cash dividends any Indebtedness owed to its stockholders and purchasethe Borrower or any Subsidiary, redeem (b) make loans or otherwise acquire shares advances to the Borrower or any Subsidiary, or (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (B) the ability of the Borrower or any other Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of:
(i) this Agreement, the other Credit Documents and the Senior Subordinated Note Documents;
(ii) applicable law;
(iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices;
(iv) any restriction or encumbrance with respect to a Subsidiary of the Borrower imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or warrantsassets of such Subsidiary, rights so long as such sale or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would existdisposition is permitted under this Agreement; and
(ivv) Vanstar Financing Trust may declare Liens permitted under Section 8.03 and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with any documents or instruments governing the terms thereof in an amount not of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to exceed $9,000,000 in any fiscal yearthe assets subject to such Liens.
Appears in 1 contract
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders stockholders, members and/or other owners or authorize or make any other distribution, payment or delivery of property or cash to its stockholders stockholders, members and/or other owners as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock or other ownership interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock or other ownership interests of the Borrower or any other SubsidiarySubsidiary of the Borrower, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends dividends or return capital or make distributions and other similar payments with regard to its capital stock or other membership interests to the Borrower or any Wholly-Owned to another Subsidiary of the Borrower;
(iiiii) any 90%-Owned Subsidiary of the Borrower may declare or pay cash dividends Dividends to its stockholders and purchase, redeem or otherwise acquire shares the holders of its capital stock or warrantsstock, rights or options to acquire any such shares for cash solely out of 25% of Net Income of so long as the Borrower and or its Subsidiaries arising after March 27respective Subsidiary which owns the capital stock in the 90% Owned-Subsidiary paying such Dividends receives at least its pro rata share thereof;
(iii) during Phase II, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as (a) no Default or Event of Default then exists or would existresult therefrom, (b) the Leverage Ratio on the date of payment thereof (calculated on a PRO FORMA basis after giving effect to the incurrence of any Credit Event on such date) is less than 3.50:1.00 and (c) the Borrower has theretofore made all payments required to be made pursuant to Section 5.02(g), the Borrower may pay Dividends in any fiscal year (but only after the respective Excess Cash Payment Date for such fiscal year) in an amount not to exceed 50% of the Borrower's Excess Cash Flow for the relevant Excess Cash Payment Period; and
(iv) Vanstar Financing Trust the Borrower may declare redeem or repurchase its stock (or options, warrants and/or appreciation rights in respect thereof) from shareholders, officers, employees, consultants and pay regularly accruing cash dividends on directors (or their estates) of the Trust Preferred Securities Borrower or any of its Subsidiaries upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with any shareholder agreement, stock option plan or any employee stock ownership plan, provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the terms thereof aggregate amount of all cash paid in an amount not to exceed $9,000,000 respect of all such shares, options, warrants and rights so redeemed or repurchased in any fiscal yearyear does not exceed $1,000,000.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary of the Borrower to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any Subsidiary of the Borrower , (c) transfer any of its properties or assets to the Borrower or any Subsidiary of the Borrower or (B) the ability of any Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; (ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) any restriction or encumbrance with respect to a Subsidiary of the Borrower imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; (v) Liens permitted under Sections 9.03(d), (m) and/or (n) and any documents or instruments governing the terms of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens; and (vi) any agreement or instrument governing Permitted Acquired Debt, to the extent such restriction or encumbrance (x) is not applicable to any Person or the properties or assets of any Person (other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition) and (y) was not created (or made more restrictive) in connection with or in anticipation of the respective Permitted Acquisition.
Appears in 1 contract
Dividends, Etc. The Borrower Parent will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Parent or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Parent will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Parent or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the US Borrower may pay Dividends to the US Borrower or any Wholly-Owned Subsidiary of the US Borrower;
(iiib) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default then exists or would existresult therefrom, the US Borrower may pay cash Dividends to Holdings, which in turn shall pay such amounts to Parent, so long as the cash proceeds thereof are promptly used by Parent for the purposes described in clause (d) of this Section 9.06;
(c) cash Dividends may be paid to Holdings and/or Parent so long as the proceeds thereof are promptly used by the ultimate recipient thereof to pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, PROVIDED, that the aggregate amount of cash Dividends paid pursuant to this clause (c) (calculated without duplication in the case of amounts not Dividended to Holdings or the Parent) shall at no time during any fiscal year of the US Borrower exceed $200,000;
(d) cash Dividends may be paid to Parent and Holdings in the amounts and at the times of any payment by the ultimate recipient in respect of its taxes (or taxes of the consolidated group of which it is parent), PROVIDED, that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Parent or Holdings to pay taxes at any time shall not exceed the amount of such taxes owing by the ultimate recipient at such time for the respective period and (y) any refunds received by Parent or Holdings shall promptly be returned by such Person to the US Borrower; and
(ive) Vanstar Financing Trust so long as no Default or Event of Default exists or would result therefrom, Parent may declare and pay regularly accruing cash dividends on purchase shares of common stock of Parent to the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearextent permitted by Section 9.02(k).
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends or distributions payable solely in common shares of capital stock of the Borrower Holdings or any such Subsidiaryof its Subsidiaries, as the case may beother than redeemable stock) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or make any loans or advances to Affiliates, or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing foregoing, "Dividends"), except that:
that (i) the Borrower may purchase, redeem any direct or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any indirect Subsidiary of the Borrower Holdings may pay Dividends to its parent corporation if such parent corporation is a Wholly Owned Subsidiary of Holdings, (ii) the Borrower or any Wholly-Owned other Subsidiary of Holdings may pay to Holdings any amounts required for the Borrower;
payment of (iiiI) interest when due on the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, Senior Subordinated Notes (provided no Default or Event of Default would exist; and
exists under this Agreement) and (ivII) Vanstar Financing Trust any taxes payable (A) by Holdings or (B) by Holdings, the Borrower and/or its Subsidiaries on a consolidated, combined or unitary basis, (iii) Holdings or any of its Subsidiaries may declare and pay regularly accruing cash dividends on purchase capital stock held by employees of Holdings or any of its Subsidiaries pursuant to any employee stock option or other benefit plan thereof upon the Trust Preferred Securities termination, retirement or death of any such employee in accordance with the terms thereof provisions of any such plan in an amount not to exceed greater than $9,000,000 250,000 in any fiscal calendar year; PROVIDED that the Borrower may purchase capital stock pursuant to the Employment Agreement with Dr. Leroy Keith dated as of August 23, 1995, as amended, without regaxx xx xxxx xxxxtation; and (iv) Holdings or any of its Subsidiaries may make payments to Affiliates pursuant to and in compliance with Section 6.08 hereof.
Appears in 1 contract
Samples: Credit Agreement (Ivax Corp /De)
Dividends, Etc. The Borrower Holdings will not, and will not permit any of --------------- its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the a Borrower may pay Dividends to the such Borrower or any Wholly-Owned Subsidiary of the such Borrower;
(iiiii) after the Borrower Merger Date, Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock, as the case may be, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27following the termination of their employment, 1999 provided that (w) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven and computed (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes shall not exceed $3,000,000, and (y) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default would exist; andshall then exist or result therefrom;
(iviii) Vanstar Financing Trust so long as no Default or Event of Default then exists or would result therefrom, the Borrower may declare and pay regularly accruing cash dividends on Dividends to Holdings so long as the Trust Preferred Securities cash proceeds thereof are promptly used by Holdings for the purposes described in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.clause (ii) of this Section 9.06;
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any of --------------- its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiia) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock Holdings Common Stock or warrants, rights Holdings Class L Common Stock or options to acquire purchase Holdings Common Stock or Holdings Class L Common Stock, respectively, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment, provided that (w) the only consideration paid by -------- Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $1,000,000 in any fiscal year of Holdings, provided that such amount shall -------- be increased by an amount equal to the proceeds received by Holdings after March 27the Effective Date from the sale or issuance of Holdings Common Stock or Holdings Class L Common Stock, 1999 as the case may be, to management of Holdings or any of its Subsidiaries and computed on a cumulative consolidated basis, provided, that, immediately after giving effect (y) at the time of any cash payment permitted to such proposed actionbe made pursuant to this Section 8.06(ii), no Default or Event of Default shall then exist or result therefrom; and (b) so long as no Default or Event of Default then exists or would existresult therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (ii)(a) of this Section 8.06;
(a) Holdings may redeem or purchase shares of Holdings Common Stock or Holdings Class L Common Stock or options to purchase Holdings Common Stock or Holdings Class L Common Stock, as the case may be, held by the two individuals holding the offices of Chairman and Chief Financial Officer of the Borrower as of the Effective Date following the death or disability of such individuals, provided that (x) the aggregate amount paid by Holdings in respect of all such redemptions and/or purchases for (I) the individual holding the office of Chairman shall not exceed $5,000,000 and (II) the individual holding the office of Chief Financial Officer does not exceed $1,000,000 and (y) at the time of any payment permitted to be made pursuant to this Section 8.06(iii), no Default or Event of Default shall then exist or result therefrom and (b) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as the cash proceeds thereof are promptly used by Holdings for the purposes described in clause (iii)(a) of this Section 8.06;
(iv) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings to (x) pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, provided that the aggregate amount of cash Dividends paid -------- pursuant to this clause (x) shall not during any fiscal year of the Borrower exceed $1,000,000 or (y) pay salaries or other compensation of employees who perform services for Holdings and the Borrower, provided that -------- the aggregate amount of cash Dividends paid pursuant to this clause (y) shall not during any fiscal year of the Borrower exceed $250,000;
(v) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided -------- that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay federal income taxes at any time shall not exceed the lesser of (A) the amount of such federal income taxes owing by Holdings at such time for the respective period and (B) the amount of such federal income taxes that would be owing by the Borrower and its Subsidiaries on a consolidated basis for such period if determined without regard to Holdings' ownership of the Borrower and (y) any refunds shall promptly be returned by Holdings to the Borrower; and
(ivvi) Vanstar Financing Trust Holdings may declare and pay regularly accruing cash dividends scheduled Dividends on the Trust Preferred Permitted Holdings PIK Securities in accordance with (to the extent issued as preferred stock) pursuant to the terms thereof solely through the issuance of additional shares of such Permitted Holdings PIK Securities, provided that in an amount not to exceed $9,000,000 lieu of -------- issuing additional shares of such Permitted Holdings PIK Securities as Dividends, Holdings may increase the liquidation preference of the shares of Permitted Holdings PIK Securities in any fiscal yearrespect of which such Dividends have accrued.
Appears in 1 contract
Dividends, Etc. The (a) No Borrower will, nor will not, and will not any Borrower permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the such Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stockstock (other than the issuance of common stock of Workflow upon conversion of any convertible preferred stock that may be issued by Workflow in accordance with this Agreement), now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Workflow will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
: (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iix) any Subsidiary of the Borrower Workflow may pay Dividends to the Borrower Workflow or any Wholly-Owned other Subsidiary of the Borrower;
Workflow and (iiiy) the Borrower repurchases may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares be made by Workflow of its capital stock and/or options or warrants, rights warrants to purchase its capital stock from management or options to acquire any such shares for cash solely out directors of 25% of Net Income of the Borrower Workflow and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as (i) no Default or Event of Default would existexists at the time of such purchase and (ii) the aggregate amount paid by Workflow in connection with all such repurchases does not exceed (x) $2,000,000 in the aggregate for Workflow's fiscal years 1998 and 1999 taken together and (y) $500,000 for each fiscal year of Workflow thereafter.
(b) No Borrower will, nor will any Borrower permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any such Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary Guarantor, (b) make loans or advances to Workflow or any Subsidiary of Workflow or (c) transfer any of its properties or assets to Workflow or any Subsidiary of Workflow, or (B) the ability of Workflow or any Subsidiary of Workflow, to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; and
(ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; and (iv) Vanstar Financing Trust may declare Liens permitted under Sections 8.03(i) and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with (j), and any documents or instruments governing the terms thereof in an amount not of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to exceed $9,000,000 in any fiscal yearthe assets subject to such Liens.
Appears in 1 contract
Dividends, Etc. The Borrower will notSubject to Section 6.17, and will not declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its capital stock or any warrants, rights or options to acquire such capital stock, now or hereafter outstanding, return any capital to its stockholders as such, make any distribution of assets, capital stock, warrants, rights, options, obligations or securities to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any capital stock of any Borrower or any warrants, rights or options to acquire such capital stock or to issue or sell any such capital stock or any warrants, rights or options to acquire such capital stock, except:
(a) The Borrowers may declare and pay dividends and make distributions payable solely in Equity Interests of such Borrower, including common stock, warrants, options and rights to purchase common stock, but only on the condition that no such instrument or security by its terms shall mandate or require such Borrower to, and no holder thereof shall have the right to require such Borrower to, declare or pay any dividends (other than dividends payable solely or distributions in common stock of the Borrower respect thereof or any such Subsidiarypurchase, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase defease or otherwise acquire, directly or indirectly, acquire for consideration, value any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or warrants, options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common capital stock;
(iib) any A Subsidiary of the any Borrower may declare and pay Dividends dividends and distributions to the such Borrower or any to another Subsidiary that is a Wholly-Owned Subsidiary of the such Borrower;
(iiic) The Borrowers may satisfy the Borrower may declare or pay cash dividends to its stockholders and purchaseAcquisition Puts, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income provided that satisfaction of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect Acquisition Puts shall be subject to such proposed action, the conditions that no Default or Event of Default then exists or would existexist after giving effect to the satisfaction of any such Acquisition Puts, and the Administrative Agent shall have received a Compliance Certificate duly executed by each of the Borrowers evidencing the Borrowers' compliance with the covenants set forth in Article 8 before and after giving effect to the satisfaction of any Acquisition Put;
(d) For issuances of stock expressly permitted by Section 6.18 and issuances of warrants to any Lender Party and for repurchases, required for regulatory compliance, of warrants held by financial institutions; and
(ive) Vanstar Financing Trust may declare For issuances of stock expressly permitted by and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with pursuant to the terms thereof set forth in an amount not to exceed $9,000,000 in any fiscal yearSection 6.17(e).
Appears in 1 contract
Samples: Credit Agreement (Mediabay Inc)
Dividends, Etc. The Borrower will not, and will not permit any --------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Borrower Common Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase Borrower Common Stock, as the case may be, held by former employees of the Borrower and or any of its Subsidiaries arising following the termination of their employment (by death, disability or otherwise), provided that (x) the only consideration paid by the Borrower -------- in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven plus (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Initial Borrowing Date, 1999 shall not exceed $5,000,000, and computed on (z) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default would exist; andshall then exist or result therefrom;
(iii) on the Initial Borrowing Date and concurrently with the Credit Events then occurring, the Borrower may effect the Common Stock Repurchase in accordance with the requirements of Section 5.08(a);
(iv) Vanstar Financing Trust so long as no Default or Event of Default exists or would result therefrom, the Borrower may declare and pay regularly accruing cash dividends Dividends on the Trust Disqualified Preferred Securities Stock issued pursuant to Section 9.13(c), with such Dividends to be paid in accordance with the terms of the respective certificate of designation therefor;
(v) any Subsidiary of the Borrower that is not a Wholly-Owned Subsidiary may pay cash Dividends to its shareholders or partners generally, so long as the Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in an the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto);
(vi) the Borrower may purchase shares of Borrower Common Stock on the open-market so long as (x) no Default or Event of Default is then in existence or would result therefrom, (y) such shares of Borrower Common Stock are reissued as consideration to a seller in connection with a Permitted Acquisition within three months following the purchase thereof as provided above and (z) the aggregate amount of cash paid to purchase such shares after the Effective Date shall not exceed the sum of (I) $20,000,000 plus (II) after the reissuance of any such shares as contemplated by clause ---- (y) above, the aggregate amount of cash initially paid by the Borrower to purchase such shares on the open-market;
(vii) the Borrower may pay regularly accruing Dividends with respect to Qualified Preferred Stock through the issuance of additional shares of Qualified Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same;
(viii) at any time and from time to time prior to the 90th day following the Initial Borrowing Date, in the event any portion of the proceeds deposited in the BT Tender Offer Account on the Initial Borrowing Date are not utilized to finance the Common Stock Repurchase, the Borrower may purchase shares of Borrower Common Stock on the open-market in cash, so long as (x) no Default or Event of Default is then in existence or would result therefrom, (y) the aggregate amount of cash paid to purchase shares of Borrower Common Stock pursuant to this clause (viii) does not exceed the aggregate amount of the proceeds deposited in the BT Tender Offer Account on the Initial Borrowing Date and not utilized to finance the Common Stock Repurchase, and (z) any such purchase of shares of Borrower Common Stock shall be made on a basis no less favorable from the Borrower's perspective than purchases of Borrower Common Stock pursuant to the Common Stock Repurchase (i.e., at a cash price per share not to exceed $9,000,000 22.50); provided ---- -------- that in any fiscal year.no event shall the aggregate amount of cash used to purchase Borrower Common Stock pursuant to this clause (viii), when combined with the aggregate amount of cash actually paid to finance the Common Stock Repurchase, exceed the aggregate amount permitted to be paid to effect the Common Stock Repurchase pursuant to Section 5.08(a); and
(ix) the Borrower may pay cash in lieu of fractional shares of Borrower Common Stock issued in connection with a conversion of Convertible Subordinated Notes into Borrower Common Stock in accordance with the relevant provisions of the
Appears in 1 contract
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
: (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iix) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
, (iiiy) repurchases may be made by the Borrower may declare at a time when no Default or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares Event of Default exists of its capital stock and/or options or warrants, rights warrants to purchase its capital stock from management or options to acquire any such shares for cash solely out of 25% of Net Income directors of the Borrower and its Subsidiaries arising after March 27, 1999 in an aggregate amount not to exceed $2,000,000 in any fiscal year; provided that any unused amounts may be carried over to any subsequent fiscal year subject to a maximum aggregate amount of $5,000,000 and computed on a cumulative consolidated basis, provided, that, immediately (z) cash Dividends may be paid by the Borrower to the extent that at the time of any declaration of any such Dividend and after giving effect to such proposed action, no the Dividend so declared as if paid (x) No Default or Event of Default would existshall exist and (y) the aggregate cash Dividends declared and/or paid by the Borrower after July 1, 1997 shall not exceed 50% of Cumulative Net Income at such time.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any such Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary Guarantor, (b) make loans or advances to the Borrower or any Subsidiary Guarantor, (c) transfer any of its properties or assets to the Borrower or any Subsidiary Guarantor, or (B) the ability of the Borrower or any Subsidiary Guarantor, to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; and
(ii) the Senior Subordinated Note Documents and the documents governing any Floorplan Financing; (iii) applicable law; (iv) Vanstar Financing Trust may declare customary non-assignment provisions entered into in the ordinary course of business and pay regularly accruing cash dividends on consistent with past practices; (v) any restriction or encumbrance with respect to a Subsidiary of the Trust Preferred Securities in accordance with Borrower imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; and (vi) Liens permitted under Section 8.03(l) and any documents or instruments governing the terms thereof in an amount not to exceed $9,000,000 in of any fiscal yearIndebtedness or other obligations secured by any such Liens.
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or or- indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "“Dividends"”), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to its stockholders or holders of ownership interests provided that (A) the aggregate dollar amount of Dividends paid to Persons other than the Borrower or any Wholly-Owned Subsidiary of Borrower since the BorrowerAmendment Effective Date shall not exceed $5,000,000 at any time and (B) no Dividends shall be paid to Persons other than the Borrower or any Wholly-Owned Subsidiary of Borrower if a Default or Event of Default then exists or would result from the paying of such Dividends;
(a) Holdings may redeem or purchase shares of Holdings Common Stock or options to purchase Holdings Common Stock, held by former employees of Holdings or any of its Subsidiaries following the termination of their employment or their death or disability, provided that (w) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes after the Amendment Effective Date, shall not exceed $10,000,000, provided that such amount shall be increased by an amount equal to the proceeds received by Holdings after the Amendment Effective Date from the sale or issuance of Holdings Common Stock to management of Holdings or any of its Subsidiaries since the Amendment Effective Date and (y) at the time of any cash payment permitted to be made pursuant to this Section 8.06(ii), no Default or Event of Default shall then exist or result therefrom; and (b) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (iii)(a) of this Section 8.06;
(iii) the Borrower or any Subsidiary of Borrower may declare or pay cash dividends Dividends to its stockholders Holdings so long as the proceeds thereof are promptly used by Holdings to (x) pay operating expenses in the ordinary course of business (including professional fees and purchaseexpenses) and other similar corporate overhead costs and expenses or (y) pay salaries or other compensation of employees who perform services for Holdings and the Borrower or any Subsidiary of Borrower;
(iv) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, redeem or otherwise acquire shares provided that (x) the amount of its capital stock or warrants, rights or options cash Dividends paid pursuant to acquire this clause (v) to enable Holdings to pay federal income taxes at any time shall not exceed the lesser of (A) the amount of such shares federal income taxes owing by Holdings at such time for cash solely out the respective period and (B) the amount of 25% of Net Income of such federal income taxes that would be owing by the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basisbasis for such period if determined without regard to Holdings’ ownership of the Borrower and (y) any refunds shall promptly be returned by Holdings to the Borrower;
(v) Holdings may pay regularly scheduled Dividends on the Permitted Holdings PIK Securities (to the extent issued as preferred stock) pursuant to the terms thereof solely through the issuance of additional shares of such Permitted Holdings PIK Securities, providedprovided that in lieu of issuing additional shares of such Permitted Holdings PIK Securities as Dividends, thatHoldings may increase the liquidation preference of the shares of Permitted Holdings PIK Securities in respect of which such Dividends have accrued;
(a) Holdings may pay cash Dividends and may redeem or purchase shares of Holdings Common Stock, immediately after giving effect options to purchase Holdings Common Stock or Holdings preferred stock, in addition to those permitted above in this Section 8.06, in an aggregate amount not to exceed the sum of (y) $20,000,000, plus (z) the then applicable Cumulative Consolidated Net Income Amount, so long as in each such proposed action, case no Default or Event of Default then exists or would existresult therefrom, and (b) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as the cash proceeds thereof are promptly used by Holdings for the purpose described in clause (vi)(a) of this Section 8.06, provided that in no event may more than half of the Cumulative Consolidated Net Income Amount be used to pay cash Dividends to shareholders of Holdings other than in the form of Holdings Common Stock repurchases and cash payments owing in respect of Shareholder Subordinated Notes issued pursuant to Section 8.06(iii)(a); and
(ivvii) Vanstar Financing Trust Holdings may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof Dividends in an aggregate amount not to exceed $9,000,000 10,000,000 in any fiscal yearyear (and the Borrower may pay cash Dividends to Holdings so long as the cash proceeds thereof are promptly used by Holdings for the purpose described in this clause (vii) of this Section 8.06), provided that no Default or Event of Default shall then exist or result therefrom.
Appears in 1 contract
Samples: Credit Agreement (Nutraceutical International Corp)
Dividends, Etc. (a) The Borrower will not, and will not --------------- permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stockstock (other than the issuance of common stock of the Borrower upon conversion of any convertible preferred stock that may be issued by the Borrower), now or hereafter outstanding outstand ing (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
: (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iix) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned other Subsidiary of the Borrower;
Borrower and (iiiy) repurchases may be made by the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock and/or options or warrants, rights warrants to purchase its capital stock from management or options to acquire any such shares for cash solely out of 25% of Net Income directors of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as (i) no Default under Section 9.01 or Event of Default would existexists at the time of such purchase and (ii) the aggregate amount paid by the Borrower in connection with all such repurchases does not exceed $100,000 in any fiscal year of the Borrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any such Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary Guarantor, (b) make loans or advances to the Borrower or any Subsidiary Guarantor, (c) transfer any of its properties or assets to the Borrower or any Subsidiary Guarantor, or (B) the ability of the Borrower or any Subsidiary Guarantor, to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibi tions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; and
(ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices and (iv) Vanstar Financing Trust may declare Liens permitted under Sections 8.03(i) and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with (j), and any documents or instruments governing the terms thereof in an amount not of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to exceed $9,000,000 in any fiscal yearthe assets subject to such Liens.
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends or distributions payable solely in common shares of capital stock of the Borrower Holdings or any such Subsidiaryof its Subsidiaries, as the case may beother than redeemable stock) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or make any loans or advances to Affiliates, or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing foregoing, "Dividends"), except that:
that (i) the Borrower may purchase, redeem any direct or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any indirect Subsidiary of the Borrower Holdings may pay Dividends to its parent corporation if such parent corporation is a Wholly Owned Subsidiary of Holdings, (ii) the Borrower or any Wholly-Owned other Subsidiary of Holdings may pay to Holdings any amounts required for the Borrower;
payment of (iiiI) interest when due on the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, Senior Subordinated Notes (provided no Default or Event of Default would exist; and
exists under this Agreement) and (ivII) Vanstar Financing Trust any taxes payable (A) by Holdings or (B) by Holdings, the Borrower and/or its Subsidiaries on a consolidated, combined or unitary basis, (iii) Holdings or any of its Subsidiaries may declare and pay regularly accruing cash dividends on purchase capital stock held by employees of Holdings or any of its Subsidiaries pursuant to any employee stock option or other benefit plan thereof upon the Trust Preferred Securities termination, retirement or death of any such employee in accordance with the terms thereof provisions of any such plan in an amount not to exceed greater than $9,000,000 250,000 in any fiscal calendar year; provided that the Borrower may purchase capital stock pursuant to the Employment Agreement with Dr. Leroy Keith dated as of Auguxx 00, 0000, as amended, without regard to such limitation; and (iv) Holdings or any of its Subsidiaries may make payments to Affiliates pursuant to and in compliance with Section 6.08 hereof.
Appears in 1 contract
Samples: Credit Agreement (Carson Inc)
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Borrower Common Stock and Additional Permitted Preferred Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase Borrower Common Stock or Additional Permitted Preferred Stock, as the case may be, held by former employees of the Borrower and or any of its Subsidiaries arising following the termination of their employment and/or by existing employees of the Borrower or any of its Subsidiaries who satisfy the "deemed hardship distribution standards" within the meaning of Treas. Reg. [Section] 1.401(k)-1(d)(2)(iv) and who the Borrower designates, in its discretion, as eligible for such redemption or purchase; PROVIDED that (w) the only consideration paid by the Borrower in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made (other than payments solely in the form of additional Shareholder Subordinated Notes) on Shareholder Subordinated Notes shall not exceed $1,500,000 in any fiscal year of the Borrower, PROVIDED that such amount shall be increased by an amount (not to exceed $5,000,000 for purposes of this clause (ii)) equal to the proceeds received by the Borrower after March 27the Initial Borrowing Date and during such fiscal year from the sale or issuance of Borrower Common Stock or Additional Permitted Preferred Stock, 1999 as the case may be, to management of the Borrower or any of its Subsidiaries and computed on (y) at the time of any cash payment permitted to be made pursuant to this Section 8.07(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom;
(iii) so long as no Default or Event of Default then exists or would existresult therefrom, the Borrower may redeem shares of Preferred Stock (i) with the proceeds of the sale of Borrower Common Stock, if, after giving pro forma effect to such sale of common stock and such redemption of Preferred Stock as if such events had occurred on the last day of the most recently ended Test Period, the Leverage Ratio would be less than or equal to 4.5 to 1.0 and (ii) with the proceeds of Additional Permitted Preferred Stock; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends Borrower Preferred Stock issued as a dividend on the Trust other Borrower Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearStock.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(ia) the Borrower may purchase, redeem or otherwise acquire pay regularly accruing dividends on each issuance of Preferred Stock through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with the proceeds received by Preferred Stock, provided that the Borrower from the substantially concurrent issue may pay such regularly accruing dividends on its Preferred Stock in cash so long as no Default or Event of new shares of its common stockDefault exists at such time or would result therefrom;
(iib) any Subsidiary of the Borrower may pay Dividends to the Borrower or to any Wholly-Owned Restricted Subsidiary of the Borrower;
(iiic) the Borrower any Partially-Owned Restricted Subsidiary may declare or pay cash dividends Dividends to its stockholders and purchasestockholders, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of provided that the Borrower and its Restricted Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to must receive at least their proportionate share of any Dividends paid by such proposed action, Subsidiary;
(d) so long as no Default or Event of Default exists at such time or would exist; and
result therefrom the Borrower may issue its Subordinated Exchange Debentures in exchange for its Series D Preferred Stock in accordance with the terms thereof, (ivy) Vanstar Financing Trust the Borrower may declare and pay regularly accruing cash dividends on the Trust issue its Subordinated Exchange Debentures in exchange for its Series F Preferred Securities Stock in accordance with the terms thereof and (z) the Borrower may issue its Subordinated Exchange Debentures in an exchange for its Series H Preferred Stock in accordance with the terms thereof, provided that in each such case, the Borrower shall have determined, with respect to such issuance, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
(e) the Borrower may exchange shares of its common stock in replacement for shares of outstanding Preferred Stock;
(f) the Borrower may issue Permitted Replacement Preferred Stock so long as either (x) such stock is issued in exchange for or (y) all of the proceeds from such issuance are used to redeem or repurchase, shares of outstanding Preferred Stock;
(g) the Borrower may redeem or repurchase shares of its common stock from management investors; provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not to exceed the sum of (i) $9,000,000 10,000,000 in any fiscal yearyear or $25,000,000 in the aggregate after the Effective Date and (ii) the amount of cash proceeds received by the Borrower in respect of the issuance of common equity to management investors on or after the Effective Date;
(h) the Borrower and its Subsidiaries may enter into transactions permitted under Section 8.05(g);
(i) the Borrower and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may redeem or repurchase shares of its Preferred Stock at a price less than or equal to the liquidation preference thereof plus accrued but unpaid dividends thereon and any applicable premium with respect thereto in exchange for, or with the proceeds of, Loans, Additional Preferred Stock and/or Indebtedness incurred under Sections 8.04(h) and/or 8.04(j) (it being understood and agreed that such redemption and/or repurchase need not occur contemporaneously with the issuance of such Additional Preferred Stock or Indebtedness);
(k) so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may declare and pay cash Dividends to the holders of its common stock (including, without limitation, repurchases of shares of its common stock), provided that (x) the aggregate amount of cash Dividends paid pursuant to this clause (k) during any fiscal year of the Borrower does not exceed $75,000,000 and (y) the Borrower shall have determined, in connection with such Dividend, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement; and
(l) the Borrower may pay additional cash Dividends to the holders of its common stock so long as (x) no Default or Event of Default exists at such time or would result therefrom, (y) the Leverage Ratio at such time is less than 4.00:1.00 and (z) the Borrower shall have determined, in connection with such Dividend, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (About, Inc.)
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, purposes and the Borrower will not, and will not permit any of its Subsidiaries to to, purchase or otherwise acquire for a consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any warrants for or options or warrants or stock appreciation rights issued by such Person with in respect to its capital stockof any such shares) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower and any Permitted Joint Venture may pay Dividends (x) to the Borrower or to any Wholly-Owned Subsidiary of the BorrowerBorrower or (y) to any other investor in such Subsidiary or Permitted Joint Venture to the extent of such investor's proportionate ownership interest in such Subsidiary or Permitted Joint Venture;
(iiib) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as there shall exist no Default or Event of Default (both before and after giving effect thereto), the Borrower may effect Common Stock Repurchases in accordance with applicable law and so long as the Borrower (x) promptly retires any such shares of Common Stock so repurchased or (y) holds such shares as treasury stock;
(c) the Borrower may pay cash Dividends in any fiscal quarter to the holders of Common Stock if and only if (x) no Default or Event of Default then exists or would existresult from the payment thereof and (y) the aggregate amount of all cash Dividends proposed to be paid in any such fiscal quarter pursuant to this clause (c), when added to the aggregate amount of all cash Dividends previously paid during the fiscal quarter in which such cash Dividends are proposed to be paid and during the immediately preceding three fiscal quarters, shall not exceed the greater of (1) $15,000,000 or (2) 35% of the Consolidated Net Income of the Borrower for the immediately preceding four fiscal quarters of the Borrower as determined from the most recently delivered Section 7.01 Financials; and
(ivd) Vanstar Financing Trust so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Borrower may declare repurchase or redeem stock appreciation rights issued by the Borrower to its directors, employees and pay regularly accruing cash dividends on officers pursuant to the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearStock Option Plans.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Dividends, Etc. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposespurposes and the Company will not, and the Borrower will not permit any of its Subsidiaries to to, purchase or otherwise acquire for a consideration any shares of any class of the capital stock of the Borrower Company or any other Subsidiary, as the case may be, now or hereafter outstanding (or any warrants for or options or warrants or stock appreciation rights issued by such Person with in respect to its capital stockof any such shares) (all of the foregoing "“Dividends"”), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower Company and any Permitted Joint Venture may pay Dividends (x) to the Borrower Company or to any Wholly-Owned Subsidiary of the BorrowerCompany or (y) to any other investor in such Subsidiary or Permitted Joint Venture to the extent of such investor’s proportionate ownership interest in such Subsidiary or Permitted Joint Venture;
(iiib) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as there shall exist no Default or Event of Default (both before and after giving effect thereto), the Company may effect Common Stock Repurchases in accordance with applicable law and so long as the Company (x) promptly retires any such shares of Common Stock so repurchased or (y) holds such shares as treasury stock;
(c) the Company may pay cash Dividends in any fiscal quarter to the holders of Common Stock if and only if (x) no Default or Event of Default then exists or would existresult from the payment thereof and (y) the aggregate amount of all cash Dividends proposed to be paid in any such fiscal quarter pursuant to this clause (c), when added to the aggregate amount of all cash Dividends previously paid during the fiscal quarter in which such cash Dividends are proposed to be paid and during the immediately preceding three fiscal quarters, shall not exceed the greater of (1) $15,000,000 or (2) 35% of the Consolidated Net Income of the Company for the immediately preceding four fiscal quarters of the Company as determined from the most recently delivered Section 7.01 Financials; and
(ivd) Vanstar Financing Trust so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Company may declare repurchase or redeem stock appreciation rights issued by the Company to its directors, employees and pay regularly accruing cash dividends on officers pursuant to the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearStock Option Plans.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Dividends, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, to its stockholders (in their capacity as such) or authorize or make any other distribution, payment or delivery of property or cash to its stockholders (in their capacity as such), or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or make any loans or advances to Affiliates, or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiaryof its Restricted Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing foregoing, "DividendsDIVIDENDS"), except that:
PROVIDED, HOWEVER, that (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any direct or indirect Wholly Owned Subsidiary of the Borrower may pay cash Dividends to its parent corporation if such parent corporation is the Borrower or is both a Wholly Owned Subsidiary and a Restricted Subsidiary of the Borrower; (b) the Borrower or any Whollyof its Restricted Subsidiaries may make payments to Affiliates pursuant to and in compliance with Section 7.19; (c) after December 15, 2002, the Borrower may pay Dividends to holders of its Series A Preferred Stock required by the Certificate of Designation of such Series A Preferred Stock as in effect on the Closing Date and the Borrower may pay non-Owned Subsidiary cash dividends in the form of the Borrower;
payment-in-kind preferred stock to holders of its Series A Preferred Stock at any time; (iiid) the Borrower may declare or pay cash dividends make payments from the Put/Call Funds to its stockholders and purchaseManagement Stockholders to redeem their "Option Shares" (as defined in the Put/Call Option Agreement), redeem or otherwise acquire shares of its capital stock or warrantsin accordance with the Put/Call Option Agreement, rights or options to acquire provided that any such shares for cash solely out redemption is effected prior to January 31, 1998; and (e) upon the death, disability or termination of 25% employment of Net Income Management Stockholders, the Borrower may repurchase from such Management Stockholders their Capital Stock of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, in an amount not exceeding $250,000 per year or $1,500,000 in the aggregate; provided in each case that no Default or Event of Default which has not been cured or waived is in existence, or would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearresult from such payment.
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any -------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiia) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock Holdings Common Stock or warrants, rights Holdings Class L Common Stock or options to acquire purchase Holdings Common Stock or Holdings Class L Common Stock, respectively, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment, provided that (w) the only consideration paid by -------- Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $1,000,000 in any fiscal year of Holdings, provided that such Holdings -------- after March 27December 20, 1999 1994 from the sale or issuance of Holdings Common Stock or Holdings Class L Common Stock, as the case may be, to management of Holdings or any of its Subsidiaries and computed on (y) at the time of any cash payment permitted to be made pursuant to this Section 8.07(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom; and (b) so long as no Default or Event of Default then exists or would exist; andresult therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (ii)(a) of this Section 8.07;
(iii) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings to (x) pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, provided that the aggregate amount of cash Dividends paid -------- pursuant to this clause (x) shall not during any fiscal year of the Borrower exceed $1,500,000 or (y) pay salaries or other compensation of employees who perform services for Holdings and the Borrower, provided that -------- the aggregate amount of cash Dividends paid pursuant to this clause (y) shall not during any fiscal year of the Borrower exceed $2,000,000;
(iv) Vanstar Financing Trust the Borrower may declare pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided -------- that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay regularly accruing cash dividends federal income taxes at any time shall not exceed the lesser of (A) the amount of such federal income taxes owing by Holdings at such time for the respective period and (B) the amount of such federal income taxes that would be owing by the Borrower and its Subsidiaries on a consolidated basis for such period if determined without regard to Holdings' ownership of the Borrower and (y) any refunds shall promptly be returned by Holdings to the Borrower;
(v) after December 20, 1999, on the Trust Preferred Securities Business Day immediately preceding the date on which a scheduled interest payment is due on any outstanding Xxxxxx XXX Notes (or, in accordance with the terms thereof event that a Default or Event of Default shall then exist, on the first Business Day when --77-- no Default or Event of Default shall be continuing), the Borrower may pay a cash Dividend to Holdings in an amount not to exceed $9,000,000 the aggregate amount of the interest payment due as provided in the Xxxxxx XXX Notes, so long as (w) on the Business Day immediately after the receipt of such cash Dividends Holdings utilizes the full amount thereof to make such required interest payment on the Xxxxxx XXX Notes to the extent then due and payable in accordance with the terms of the Xxxxxx XXX Notes, (x) no Default or Event of Default then exists or would result therefrom, (y) such cash Dividends are otherwise not prohibited to be made at such time pursuant to Senior Subordinated Notes, and (z) at the time of any fiscal yearsuch proposed cash Dividends, the Borrower's Interest Coverage Ratio shall have been no less than, and the Borrower's Leverage Ratio shall have been no greater than, the applicable target ratios set forth on Annex X hereto for the then most recently ended Test Period, in each case determined on a pro forma basis as --- ----- if such cash dividends constituted cash interest expense of the Borrower and had been paid during such period;
(vi) Holdings may pay regularly scheduled Dividends on the Xxxxxx Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of Xxxxxx Preferred Stock, provided that in lieu of -------- issuing additional shares of Xxxxxx Preferred Stock as Dividends, Holdings may increase the liquidation preference of the shares of the Xxxxxx Preferred Stock in respect of which such Dividends have accrued, provided -------- further, that after December 20, 1999, on the Business Day immediately ------- preceding the date on which a scheduled dividend payment is due on the Xxxxxx Preferred Stock (or, in the event that a Default or Event of Default shall then exist, on the first Business Day when no Default or Event of Default shall be continuing), the Borrower may pay a cash Dividend to Holdings in an amount not to exceed the aggregate amount of the dividend payment due as provided in the Xxxxxx Preferred Stock, so long as (w) on the Business Day immediately after the receipt of such cash Dividends Holdings utilizes the full amount thereof to make such required dividend payment on the Xxxxxx Preferred Stock to the extent then due and payable in accordance with the terms of the Xxxxxx Preferred Stock, (x) no Default or Event of Default then exists or would result therefrom, (y) such cash Dividends are otherwise not prohibited to be made at such time pursuant to the Senior Subordinated Notes, and (z) at the time of any such proposed cash Dividends, the Borrower's Interest Coverage Ratio shall have been no less than, and the Borrower's Leverage Ratio shall have been no greater than, the applicable target ratios set forth on Annex X hereto for the then most recently ended Test Period, in each case determined on a pro forma --- ----- basis as if such cash dividends constituted cash interest of the Borrower and had been paid during such period;
(vii) after December 20, 1999, so long as no Default or Event of Default then exists or would result therefrom, Holdings may issue Xxxxxx XXX Notes in exchange for its then outstanding Xxxxxx Preferred Stock, provided that the aggregate principal amount of Xxxxxx XXX Notes so issued -------- shall not exceed the aggregate liquidation preference of such Xxxxxx Preferred Stock at such time;
(viii) so long as no Default or Event of Default then exists or would result therefrom, (x) Holdings may use cash to repurchase or redeem shares of Xxxxxx Preferred Stock, together with all accrued dividends thereon, so long as (I) the shares of Xxxxxx Preferred Stock so repurchased or redeemed are retired and not thereafter resold or reissued and (II) the aggregate amount expended pursuant to any such repurchase or redemption of shares of Xxxxxx Preferred Stock by Holdings shall not exceed an amount equal to 80% of the total accreted value of the Xxxxxx Preferred Stock so repurchased or redeemed at the time of such repurchase or redemption and (y) the Borrower may pay cash Dividends to Holdings to enable Holdings to repurchase or redeem Xxxxxx Preferred Stock as permitted in the immediately preceding clause (x), so long as the proceeds thereof are promptly used by Holdings to effect such repurchase or redemption; and
(ix) Holdings may pay regularly scheduled Dividends on the Permitted Holdings PIK Securities (to the extent issued as preferred stock) pursuant to the terms thereof solely through the issuance of additional shares of such Permitted Holdings PIK Securities, provided -------- that in lieu of issuing additional shares of such Permitted Holdings PIK Securities as Dividends, Holdings may increase the liquidation preference of the shares of Permitted Holdings PIK Securities in respect of which such Dividends have accrued.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries --------------- Subsidiary to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, purposes and the Borrower will not, and will not permit any of its Subsidiaries to to, purchase or otherwise acquire for a consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any warrants for or options or warrants or stock appreciation rights issued by such Person with in respect to its capital stockof any such shares) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower and any Permitted Joint Venture may pay Dividends (x) to the Borrower or to any Wholly-Owned Subsidiary of the BorrowerBorrower or (y) to any other investor in such Subsidiary or Permitted Joint Venture to the extent of such investor's proportionate ownership interest in such Subsidiary or Permitted Joint Venture;
(iiib) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as there shall exist no Default or Event of Default (both before and after giving effect thereto), the Borrower may effect Common Stock Repurchases in accordance with applicable law and so long as the Borrower promptly retires any such shares of Common Stock so repurchased;
(c) the Borrower may pay cash Dividends in any fiscal quarter to the holders of Common Stock if and only if (x) no Default or Event of Default then exists or would existresult from the payment thereof and (y) the aggregate amount of all cash Dividends proposed to be paid in any such fiscal quarter pursuant to this clause (c), when added to the aggregate amount of all cash Dividends previously paid during the fiscal quarter in which such cash Dividends are proposed to be paid and during the immediately preceding three fiscal quarters, shall not exceed the greater of (1) $10,000,000 or (2) 35% of the Consolidated Net Income of the Borrower for the immediately preceding four fiscal quarters of the Borrower as determined from the most recently delivered Section 7.01 Financials; and
(ivd) Vanstar Financing Trust so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Borrower may declare repurchase or redeem stock appreciation rights issued by the Borrower to its directors, employees and pay regularly accruing cash dividends on officers pursuant to the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearStock Option Plans.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc)
Dividends, Etc. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter here after outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Company will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Company or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(ia) the Borrower Company may purchase, redeem or otherwise acquire pay regularly accruing dividends on each issuance of Preferred Stock through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with Preferred Stock, provided that the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower Company may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay such regularly accruing dividends on its Preferred Stock in cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default exists at such time or would exist; andresult therefrom;
(ivb) Vanstar Financing Trust any Subsidiary of the Company may declare pay Dividends to the Company or to any Wholly-Owned Restricted Subsidiary of the Company;
(c) any Partially-Owned Restricted Subsidiary may pay cash Dividends to its stockholders, provided that the Company and pay regularly accruing cash dividends on its Restricted Subsidiaries must receive at least their proportionate share of any Dividends paid by such Subsidiary;
(d) so long as no Default or Event of Default exists at such time or would result therefrom (x) the Trust Company may issue its Subordinated Exchange Debentures in exchange for its Senior Preferred Securities Stock in accordance with the terms thereof, (y) the Company may issue its Subordinated Exchange Debentures in exchange for its Series B Preferred Stock in accordance with the terms thereof and (z) the Company may issue its Subordinated Exchange Debentures in an exchange for its Series C Preferred Stock in accordance with the terms thereof, provided that in each such case, the Company shall have determined, with respect to such issuance, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 7.09, 7.10 and 7.11 of this Agreement;
(e) the Company may exchange shares of its common stock in replacement for shares of outstanding Preferred Stock;
(f) the Company may issue Permitted Replacement Preferred Stock so long as either (x) such stock is issued in exchange for or (y) all of the proceeds from such issuance are used to redeem or repurchase, shares of outstanding Preferred Stock;
(g) the Company may redeem or repurchase shares of its common stock from management investors; provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not to exceed the sum of (i) $9,000,000 5,000,000 in any fiscal yearyear or $15,000,000 in the aggregate after the Effective Date and (ii) the amount of cash proceeds received by the Company in respect of the issuance of common equity to management investors on or after the Effective Date;
(h) the Company and its Subsidiaries may enter into transactions permitted under Section 7.05(g);
(i) the Company and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may redeem or repurchase shares of its Preferred Stock at a price equal to the liquidation preference thereof plus accrued but unpaid dividends thereon and any applicable premium with respect thereto in exchange for, or with the proceeds of, Additional Preferred Stock and/or Indebtedness incurred under Sections 7.04(h) and/or 7.04(j) (it being understood and agreed that such redemption and/or repurchase need not occur contemporaneously with the issuance of such Additional Preferred Stock or Indebtedness);
(k) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may declare and pay cash Dividends to the holders of its common stock (including, without limitation, repurchases of shares of its common stock), provided that (x) the aggregate amount of cash Dividends paid pursuant to this clause (k) during any fiscal year of the Company does not exceed $25,000,000 and (y) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 7.09, 7.10 and 7.11 of this Agreement; and
(l) the Company may pay additional cash Dividends to the holders of its common stock so long as (x) no Default or Event of Default exists at such time or would result therefrom, (y) the Leverage Ratio at such time is less than 4.00:1.00 and (z) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 7.09, 7.10 and 7.11 of this Agreement.
Appears in 1 contract
Dividends, Etc. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Company will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Company or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(ia) the Borrower Company may purchase, redeem or otherwise acquire pay regularly accruing dividends on each issuance of Preferred Stock through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with Preferred Stock, provided that the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower Company may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay such regularly accruing dividends on its Preferred Stock in cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default exists at such time or would exist; andresult therefrom;
(ivb) Vanstar Financing Trust any Subsidiary of the Company may declare pay Dividends to the Company or to any Wholly-Owned Restricted Subsidiary of the Company;
(c) any Partially-Owned Restricted Subsidiary may pay cash Dividends to its stockholders, provided that the Company and pay regularly accruing cash dividends on its Restricted Subsidiaries must receive at least their proportionate share of any Dividends paid by such Subsidiary;
(d) so long as no Default or Event of Default exists at such time or would result therefrom (x) the Trust Company may issue its Subordinated Exchange Debentures in exchange for its Senior Preferred Securities Stock in accordance with the terms thereof, (y) the Company may issue its Subordinated Exchange Debentures in exchange for its Series B Preferred Stock in accordance with the terms thereof and (z) the Company may issue its Subordinated Exchange Debentures in an exchange for its Series C Preferred Stock in accordance with the terms thereof, provided that in each such case, the Company shall have determined, with respect to such issuance, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
(e) the Company may exchange shares of its common stock in replacement for shares of outstanding Preferred Stock;
(f) the Company may issue Permitted Replacement Preferred Stock so long as either (x) such stock is issued in exchange for or (y) all of the proceeds from such issuance are used to redeem or repurchase, shares of outstanding Preferred Stock;
(g) the Company may redeem or repurchase shares of its common stock from management investors; provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not to exceed the sum of (i) $9,000,000 5,000,000 in any fiscal yearyear or $15,000,000 in the aggregate after the Effective Date and (ii) the amount of cash proceeds received by the Company in respect of the issuance of common equity to management investors on or after the Effective Date;
(h) the Company and its Subsidiaries may enter into transactions permitted under Section 8.05(g);
(i) the Company and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may redeem or repurchase shares of its Preferred Stock at a price equal to the liquidation preference thereof plus accrued but unpaid dividends thereon and any applicable premium with respect thereto in exchange for, or with the proceeds of, Additional Preferred Stock and/or Indebtedness incurred under Sections 8.04(h) and/or 8.04(j) (it being understood and agreed that such redemption and/or repurchase need not occur contemporaneously with the issuance of such Additional Preferred Stock or Indebtedness);
(k) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may declare and pay cash Dividends to the holders of its common stock (including, without limitation, repurchases of shares of its common stock), provided that (x) the aggregate amount of cash Dividends paid pursuant to this clause (k) during any fiscal year of the Company does not exceed $25,000,000 and (y) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement; and
(l) the Company may pay additional cash Dividends to the holders of its common stock so long as (x) no Default or Event of Default exists at such time or would result therefrom, (y) the Leverage Ratio at such time is less than 4.00:1.00 and (z) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and nor will not the -------------- Borrower permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the such Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a "Derivatives Counterparty") obligating it to make payments to such Derivatives Counterparty as a result of any change in market value of its capital stock (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends (directly or indirectly) to the Borrower or any Wholly-Owned Subsidiary of the BorrowerGuarantor;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Borrower Common Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase Borrower Common Stock, as the case may be, held by former employees or directors of the Borrower and or any of its Subsidiaries arising following the termination of their employment (by death, disability or otherwise), provided that (w) the only consideration paid by -------- the Borrower in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven and (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Effective Date, 1999 shall not exceed $5,000,000, and computed on (y) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default would exist; andshall then exist or result therefrom;
(iviii) Vanstar Financing Trust so long as no Default or Event of Default exists or would result therefrom, the Borrower may declare and pay regularly accruing cash dividends Dividends on the Trust Disqualified Preferred Securities Stock issued pursuant to Section 9.11(c), with such Dividends to be paid in accordance with the terms of the respective certificate of designation therefor;
(iv) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders or partners generally, so long as the Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interest in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto);
(v) so long as no Default or Event of Default exists or would arise therefrom, the Borrower may pay special dividends in an amount equal to the sum of (i) $15,000,000 plus (ii) cash received by the Borrower from Cendant and/or its Subsidiaries in the first six months after the Effective Date in connection with the Cendant Documents;
(vi) so long as no Default or Event of Default exists or would result therefrom, the Borrower may, after the Qualified IPO, redeem the Existing Preferred Stock with the proceeds received therefrom;
(vii) so long as no Default or Event of Default exists or would result therefrom, the Borrower may pay cash Dividends on the Existing Preferred Stock payable in accordance with the terms thereof;
(viii) so long as no Default or Event of Default exists or would result therefrom, after a Qualified IPO, the Borrower may pay additional Dividends, not to exceed $9,000,000 an amount equal to (x) the Consolidated Cumulative Net Income Amount at the time of such payment minus (y) all Dividends paid pursuant to this Section 9.06(viii) prior to such payment;
(ix) the Borrower may cancel the Existing Preferred Stock held by Cendant in any fiscal yearconnection with transactions under, and pursuant to the provisions of Sections 5.10 and 5.18 of the Stockholders Agreement, and after the Cendant Amendment Effective Date, the Acquisition Cooperation Agreement; and
(x) to the extent constituting Dividends, all payments or transfers made by the Borrower and/or its Subsidiaries pursuant to the Cendant Documents.
Appears in 1 contract
Samples: Credit Agreement (NRT Inc)
Dividends, Etc. The Borrower will not, and will not permit any (a) In the case of its Subsidiaries tothe Parent, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiarydividend on its capital stock, as the case may be) or return any capital to, its stockholders or authorize or make any other distributionpayment to purchase, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase defease or otherwise acquire, directly or indirectly, for consideration, acquire any shares of any class of its Subordinated Debt or capital stock or any option, warrant, or other right to acquire such Subordinated Debt or capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except thatthan:
(i) the Borrower may purchase, redeem or otherwise acquire dividends payable solely in shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common capital stock;; and
(ii) cash dividends declared and paid, and all other such payments made, after the Closing Date in an aggregate amount at any Subsidiary time not to exceed, as of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary date of determination, fifty percent (50%) of the Borrower;
cumulative Consolidated Net Income for the period (iiitaken as one accounting period) consisting of the twelve most recently ended Fiscal Quarters of the Parent for which internal financial statements have been prepared (taking into account 100% of all deficits during such period); provided, however, no such payment may be made pursuant to clause (ii) above, unless (x) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income full amount of the Borrower mandatory prepayment required by Section 2.03(b) or Section 3.10 has been made, and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, (y) no Default or Event of Default exists at the time of such declaration or payment, or would existexist as a result of such declaration or payment.
(b) In the case of any of the other Borrowers, declare or pay any dividend on its capital stock, or make any payment to purchase, redeem, retire, defease or acquire any of its Subordinated Debt or capital stock or any option, warrant, or other right to acquire such Subordinated Debt or capital stock, other than
(i) dividends payable solely in shares of capital stock to other Credit Parties; and
(ivii) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on declared and paid, and all other such payments made, directly or indirectly to the Trust Preferred Securities Parent, provided that such payments do not exceed amounts necessary to allow the Parent to service the Indebtedness outstanding pursuant to the Senior Subordinated Notes Indenture and to pay taxes, accounting, legal and central managerial costs and expenses in accordance a manner and amount consistent with historical business practices, provided, however, no such payment may be made pursuant to clause (ii) above, unless (x) the terms thereof in an full amount not to exceed $9,000,000 in any fiscal yearof the mandatory prepayment required by Section 2.03(b) or Section 3.10 has been made, and (y) no Default or Event of Default exists at the time of such declaration or payment, or would exist as a result of such declaration or payment.
Appears in 1 contract
Samples: Credit Agreement (Dyersburg Corp)
Dividends, Etc. The Borrower No Credit Agreement Party will, nor will not, and will not any Credit Agreement Party permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or other equityholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders or other equityholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stockEquity Interests, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower no Credit Agreement Party will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock Equity Interests of the Borrower such Credit Agreement Party or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stockEquity Interests), except to the extent (in any such case) paid by such Person to its shareholders with the common stock of such Person (all of the foregoing "foregoing, collectively, “Dividends"”), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the BorrowerGuarantor;
(iiiii) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock, as the case may be, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment (by death, disability or otherwise), provided that (x) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven plus (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Initial Borrowing Date, 1999 shall not exceed $5,000,000, and computed on (z) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom;
(iii) so long as no Default or Event of Default then exists or would exist; andexist immediately after giving effect thereto, the Borrower may pay cash Dividends to Holdings, so long as the cash proceeds thereof are promptly used by Holdings for the purposes described in clause (ii) of this Section 9.06;
(iv) Vanstar Financing Trust Holdings may declare and pay regularly accruing cash dividends on Dividends with respect to Qualified Preferred Stock through (x) an increase in the Trust aggregate liquidation preference of the shares of Qualified Preferred Securities Stock in respect of which Dividends have accrued (but not in cash) or (y) the issuance of additional shares of Qualified Preferred Stock (but not in cash) in accordance with the terms thereof;
(v) any Subsidiary of the Borrower that is not a Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Interest or Equity Interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests in such Subsidiary or the terms of any agreements applicable thereto);
(vi) the Borrower may pay cash Dividends to Holdings, so long as the proceeds thereof are promptly used by Holdings to pay operating expenses incurred by it in the ordinary course of business that are not prohibited by the terms of this Agreement or any other Credit Document;
(vii) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided that (x) the amount of cash Dividends paid pursuant to this clause (vii) to enable Holdings to pay Federal and state income taxes at any time shall not exceed the amount of such Federal and state income taxes actually owing by Holdings at such time for the respective period and (y) any refunds received by Holdings shall promptly be returned by Holdings to the Borrower;
(viii) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of paying (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to pay) cash interest and principal as and when due on Shareholder Subordinated Notes then outstanding to the extent the respective payment is expressly permitted pursuant to the proviso to clause (ii) of Section 9.06, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (viii) shall not exceed the amounts expressly permitted to be paid pursuant to the proviso to clause (ii) of Section 9.06 and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(ix) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of paying (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to pay) cash interest and principal as and when due on Permitted Subordinated Indebtedness then outstanding, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (ix) shall not exceed the amounts necessary to pay the cash interest and principal owing with respect to Permitted Subordinated Indebtedness, as the case may be, and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(x) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of paying (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to pay) regularly scheduled cash interest as and when due on the Existing 2006 Floating Rate Senior Subordinated Notes then outstanding and/or principal of the Existing 2006 Floating Rate Senior Subordinated Notes upon the final stated maturity thereof, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (x) shall not exceed the amounts necessary to pay the cash interest and/or principal owing with respect to the Existing 2006 Floating Rate Senior Subordinated Notes and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(xi) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of repurchasing or redeeming (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to repurchase or redeem) Existing 2006 Floating Rate Senior Subordinated Notes to the extent the respective repurchase or redemption is expressly permitted pursuant to clause (u) of the proviso to clause (ii) of Section 9.12, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (xi) shall not exceed the amounts expressly permitted to be paid pursuant to clause (u) of the proviso to clause (ii) of Section 9.12 and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(xii) the Borrower may pay cash Dividends to Holdings on the Redemption Date, which in turn shall immediately utilize the full amount of such cash Dividends on such date to pay accrued interest, principal and related call premiums of or on the Existing 2006 10% Senior Subordinated Notes and the Existing Junior PIK Notes pursuant to the Existing Senior Notes Refinancing (it being understood that this Section 9.06(xii) shall be alternative to, but not duplicative of, the Borrower’s right to make intercompany loans to Holdings for the purposes described above pursuant to Section 9.05(q)(i));
(xiii) Holdings may from time to time repurchase outstanding shares of Holdings Common Stock with cash and/or pay cash Dividends on Holdings Common Stock, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) calculations are made by Holdings of compliance with an amount Adjusted Total Leverage Ratio not to exceed 3.00:1.0, determined on a Pro Forma Basis after giving effect to the payment of respective Dividend and the incurrence of any Indebtedness to finance the same (as if such Dividend had been consummated and such Indebtedness had been incurred, in each case on the first day of the respective Calculation Period), (x) the aggregate amount of cash expended to make or pay Dividends pursuant to this clause (xiii) after the Initial Borrowing Date shall not exceed $9,000,000 10,000,000 (or, if the Adjusted Total Leverage Ratio determined (and demonstrated) pursuant to preceding clause (w) at the time of payment of the respective Dividend does not exceed 2.50:1.00, $20,000,000), (y) after giving effect to the payment of the respective Dividend and the incurrence of any Revolving Loans and Swingline Loans utilized to finance the same, the Total Unutilized Revolving Loan Commitment shall equal or exceed $10.0 million, and (z) Holdings shall have furnished to the Administrative Agent a certificate from an Authorized Officer of Holdings certifying to the best of his or her knowledge as to compliance with the requirements of this Section 9.06(xiii) and, if applicable, containing the calculations required by the preceding clauses (w), (x) and (y);
(xiv) Holdings may from time to time repurchase outstanding shares of Holdings Common Stock with cash and/or pay cash Dividends on Holdings Common Stock, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) calculations are made by Holdings of compliance with an Adjusted Total Leverage Ratio not to exceed 2.50:1.0, determined on a Pro Forma Basis after giving effect to the payment of respective Dividend and the incurrence of any Indebtedness to finance the same (as if such Dividend had been consummated and such Indebtedness had been incurred, in each case on the first day of the respective Calculation Period), (x) the aggregate amount of cash expended to make or pay Dividends pursuant to this clause (xiv) shall not exceed the Excess Proceeds Amount then in effect, (y) after giving effect to the payment of the respective Dividend and the incurrence of any fiscal yearRevolving Loans and Swingline Loans utilized to finance the same, the Total Unutilized Revolving Loan Commitment shall equal or exceed $10.0 million, and (z) Holdings shall have furnished to the Administrative Agent a certificate from an Authorized Officer of Holdings certifying to the best of his or her knowledge as to compliance with the requirements of this Section 9.06(xiv) and, if applicable, containing the calculations required by the preceding clauses (w), (x) and (y);
(xv) Holdings may from time to time pay cash Dividends to holders of Holdings Common Stock to redeem fractional shares of Holdings Common Stock that exist as a result of (A) any stock split or similar combination of shares of Holdings Common Stock, (B) the exercise of warrants, the conversion of securities into, or the exchange of, securities for, Holdings Common Stock, so long as (x) no Default or Event of Default then exists or would result therefrom, and (y) the aggregate amount of cash expended to pay Dividends pursuant to this clause (xv) shall not exceed $25,000; and
(xvi) so long as no Default or Event of Default then exists or would exist immediately after giving effect thereto, the Borrower may pay cash dividends to Holdings for the purpose of permitting Holdings to effect the Dividends described in Sections 9.06(xiii), (xiv) and (xv) above, so long as the cash proceeds thereof are promptly used by Holdings to effect Dividends in accordance with the requirements of said Section 9.06(xiii), (xiv) or (xv), as the case may be (it being understood that this Section 9.06(xvi) shall be alternative to, but not duplicative of, the Borrower’s right to make intercompany loans to Holdings for the purposes described above pursuant to Section 9.05(q)(ii)).
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for considerationdeclare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of equity interests of the Borrower or any Subsidiary, or purchase, redeem, defease or otherwise acquire for value (or permit any of its capital stockSubsidiaries to do so) any shares of any class of equity interests of the Borrower or any Subsidiary or any warrants, rights or options to acquire or retire any such shares, now or hereafter outstanding (such declarations, payments, other distributions, purchases, redemptions, or other acquisitions being herein called "Restricted Payments"), except that (i) any warrants for wholly owned Subsidiary may declare and pay dividends to the Borrower, or options or stock appreciation rights in respect the case of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or Subsidiary that is wholly owned by any other Subsidiary, as the case to such Subsidiary, (ii) NUI/Caritrade International may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect declare and pay ratable dividends to its capital stock) shareholders provided that it is a Subsidiary hereunder at the time of such ratable dividend, and (all of the foregoing "Dividends"), except that:
(iiii) the Borrower may (a) declare and make any dividend payment or other distribution payable solely in common equity interests of the Borrower, and (b) purchase, redeem or otherwise acquire shares of its common stock equity interests or warrants warrants, rights or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
equity interests and (iic) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock equity interests or warrants, rights or options to acquire for consideration of any such shares for cash solely out shares, so long as the aggregate of 25% of Net Income such Restricted Payments made, paid or declared since the Closing Date in the aggregate would not exceed $20,000,000; provided, that (x) in the case of the Borrower Restricted Payments under clauses (ii) and its Subsidiaries arising after March 27(iii) above, 1999 and computed on a cumulative consolidated basis, provided, that, prior to or immediately after giving effect to such proposed actionRestricted Payments, no Potential Default or Event of Default shall have existed or would exist; and
exist and (ivy) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on in the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in case of all Restricted Payments, no such payment shall violate any fiscal yearGovernmental Rule.
Appears in 1 contract
Samples: Credit Agreement (Nui Corp /Nj/)
Dividends, Etc. The Borrower will not, and will not permit any --------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may beBorrower) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for considerationa consideration (other than consideration in the form of capital stock of the Borrower), any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, purposes and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of Holding or the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any warrants for or options or warrants or stock appreciation rights issued by such Person with in respect to its capital stockof any such shares) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower may pay Dividends dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;; and
(iiib) the Borrower may declare or pay cash dividends Dividends to Holding in an amount necessary and to the extent immediately used by Holding to (i) pay accrued fees and expenses arising from the Transaction and/or ongoing reporting and related requirements, (ii) pay taxes payable by Holding (whether for itself alone or for itself and its stockholders Subsidiaries), in each case to the extent then due and purchasepayable and to the extent not otherwise paid by the Borrower pursuant to the Tax Sharing Agreement, redeem or otherwise acquire (iii) repurchase shares of its capital stock of Holding as required pursuant to the ESOP or warrantspursuant to the Shareholders' Agreement, rights or options provided that the repurchase price therefor is -------- available to acquire any such shares for cash solely out of 25% of Net Income of the Borrower from the net proceeds of any benefits paid pursuant to the terms of any life insurance policies covering certain participants in the ESOP and its Subsidiaries arising after March 27certain other executives of Holding and the Borrower, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, (iv) so long as no Default or Event of Default would exist; and
then exists, (ivA) Vanstar Financing Trust may declare pay the repurchase price payable to any officer or employee (or their estates) of Holding, the Borrower or any of its Subsidiaries upon death, disability or termination of employment of such officers and pay regularly accruing cash dividends employees to the extent provided by the terms of any Shareholders' Agreement (including any extension thereof) as in effect on the Trust Preferred Securities date of this Credit Agreement, provided, however, that the aggregate amount of all such repurchases in accordance with any -------- ------- fiscal year of the terms thereof in an amount Borrower shall not to exceed $9,000,000 5,000,000, (B) pay amounts to repurchase shares of its capital stock from participants who were distributed such shares from, and as required under, the ESOP and (C) make current payments of interest on the Holding Notes or pay principal in respect of Holding Notes issued in lieu of interest, so long as (x) the ---------- Fixed Charge Coverage Ratio calculated for any period of four consecutive fiscal yearquarters (or, if shorter, the period beginning on April 1, 1998 and ending on the last day of the last fiscal quarter then ended) in each case taken as one accounting period shall exceed 2:1 and (y) the Borrower would be permitted to make a Restricted Payment under, and as defined in, the New Senior Note Indenture in the amount of such Dividend, provided that the -------- amount of any Dividend paid pursuant to this clause (b)(iv)(C) shall not exceed the Available Amount in effect immediately prior to the payment of such Dividend.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "“Dividends"”), except that:
(ia) the Borrower may purchase, redeem or otherwise acquire pay regularly occurring dividends on each issuance of preferred stock of the Borrower through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with the proceeds received by preferred stock, provided that the Borrower from the substantially concurrent issue may pay such regularly occurring dividends on its preferred stock in each case so long as no Default or Event of new shares of its common stockDefault shall have occurred and be continuing at such time or would result therefrom;
(iib) any Subsidiary of the Borrower may pay Dividends to the Borrower or to any Wholly-Owned Restricted Subsidiary of the Borrower;
(iiic) any Partially-Owned Restricted Subsidiary may pay cash Dividends to its stockholders; provided that the Borrower and its Restricted Subsidiaries must receive at least their proportionate share of any Dividends paid by such Subsidiary;
(d) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire exchange shares of its capital common stock or warrants, rights or options to acquire any such shares in replacement for cash solely out of 25% of Net Income of its Disqualified Equity Interests and its preferred stock;
(e) the Borrower and may redeem or repurchase shares of its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, common stock from management investors; provided that (x) no Default or Event of Default is then in existence or would existresult therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not exceed the sum of (i) $5,000,000 in any fiscal year ($4,000,000 in respect of the fiscal year ended December 31, 2007 and after the Initial Borrowing Date) or $10,000,000 in the aggregate on or after the Effective Date and (ii) the amount of cash proceeds received by the Borrower in respect of common equity to management investors on or after the Effective Date;
(f) the Borrower and its Subsidiaries may enter into transactions permitted under Sections 9.05(d), 9.05(e), 9.05(g). 9.05(i), 9.05(l) and 9.05(n) (other than Dividends subject to Section 9.07(e) or (h));
(g) the Borrower and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(h) so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may declare and pay cash dividends to the holders of its common stock and its Disqualified Equity Interests and preferred stock and may redeem and purchase shares of its common stock, Disqualified Interests and preferred stock; provided that (x) the aggregate amount of payments made pursuant to this clause (h) shall not at any time exceed the then Available Amount and (y) the Borrower shall have determined, in connection with any such declaration, payment, redemption or purchase, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Section 9.09 for the most recent Test Period; and
(ivi) Vanstar Financing Trust so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearPRIMEDIA Dividend.
Appears in 1 contract
Samples: Credit Agreement (Primedia Inc)
Dividends, Etc. The Borrower (a) Parent will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the either Borrower or any other SubsidiarySubsidiary of Parent (excluding any purchase by any Subsidiary of capital stock of any of its Subsidiaries), as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "“Dividends"”), except that:
(i) the any Subsidiary of either Borrower may purchase, redeem pay Dividends to its equityholders and the applicable Borrower or otherwise acquire shares any Subsidiary of its common stock or warrants or options Parent may pay Dividends to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockParent;
(ii) Parent may redeem or repurchase Parent Common Stock and Series A Preferred (and any Subsidiary options or warrants relating thereto) from any present or former member of management or other key employee upon the Borrower may pay Dividends death, permanent disability, retirement or termination of employment of any such Person (any such event in respect of a present or former member of management or a key employee, a “Repurchase Triggering Event”), provided that (x) no Default under Section 9.1 or Event of Default is then in existence or would arise therefrom, (y) the aggregate amount of all cash paid in respect of such shares so redeemed or repurchased from all such Persons (other than pursuant to the Borrower Pike Holdings 2005 Employee Stock Purchase Plan) shall not exceed $2,000,000 in any fiscal year of Parent or $6,000,000 in the aggregate after the Original Borrowing Date and (z) the aggregate amount of all cash paid in respect of such shares so redeemed or repurchased in accordance with the Pike Holdings 2005 Employee Stock Purchase Plan shall not exceed $1,500,000 in the aggregate after the First Restatement Effective Date and; provided further that in the event that Parent subsequently resells to any member of its, OpCo’s or any Wholly-Owned of their respective Subsidiaries’ management, to any key employee or to a party acceptable to the Administrative Agent (provided that any such party shall simultaneously transfer all such shares purchased by it to a member of management of Parent, the Borrowers or such Subsidiary or a key employee, or for the benefit of one or more members of management or key employees (to the Borrowerextent that such shares are, simultaneously with such transfer, reserved for issuance to such members of management or such key employees pursuant to an employee incentive plan)) any shares redeemed or repurchased pursuant to this clause (ii), the amount of repurchases Parent may make pursuant to this clause (ii) shall be increased by an amount equal to any cash received by Parent upon the resale of such shares or upon the issuance of shares to members of management, key employees or other party;
(iii) [Intentionally Omitted];
(iv) Parent may, in accordance with the Borrower terms of the Series A Preferred and if no Event of Default shall have occurred and then be continuing, repurchase shares of the Series A Preferred transferred in violation of the transfer restrictions applicable to such shares set forth in Section 10(c) of the Certificate of Designations for the Series A Preferred, provided that (x) no such repurchase shall be for an amount in excess of the sum of (A) the Available Amount plus (B) the unused amount permitted by Section 8.6(o), in each case, at the time of such repurchase and (y) the aggregate amount expended subsequent to the Original Borrowing Date in connection with all such repurchases shall not exceed $5,000,000;
(v) Parent may declare effect adjustments to the adjusted base value of (a) the Series A Preferred in accordance with the terms of the Series A Preferred and (b) the Additional Permitted Preferred in accordance with the terms of the Additional Permitted Preferred;
(vi) Parent may (A) so long as the Leverage Ratio is then less than or pay cash dividends equal to its stockholders and purchase2.75 to 1.00, redeem or otherwise acquire repurchase Parent Common Stock held by LGB and its Affiliates in exchange for the issuance by Parent of preferred stock of Parent having terms not less favorable to the Lenders than the terms of the Series A Preferred, provided that the inclusion in such preferred stock of (x) a higher dividend rate than that included in the Series A Preferred or (y) voting rights different from those granted to the Series A Preferred shall be deemed not to be less favorable to the Lenders, and (B) redeem or repurchase Series A Preferred pursuant to the conversion of Series A Preferred into Parent Common Stock in accordance with the terms of the Series A Preferred;
(vii) in addition to the Series A Preferred repurchased pursuant to Sections 8.9(a)(ii) and (iv), Parent may at any time, in accordance with the terms of the Series A Preferred and if no Event of Default shall have occurred and then be continuing, repurchase shares of its capital stock or warrantsthe Series A Preferred in an aggregate amount expended subsequent to the First Restatement Effective Date not exceeding the sum of (x) $5,000,000 and (y) the aggregate amount of Equity Contributions not previously utilized pursuant to clauses (y)(1), rights or options to acquire any such shares for cash solely out of 25% of Net Income (y)(2) and (y)(3) of the Borrower definition of “Available Amount” prior to the date of such repurchase;
(viii) on or before April 10, 2005, OpCo may pay a dividend in one or more installments to Parent in an amount not in excess of the Tranche C Term Loans to permit Parent to, and its Subsidiaries arising after March 27Parent may (A) in addition to the Series A Preferred purchased pursuant to Sections 8.9(a)(ii), 1999 (iv) and computed (vii), at any time in accordance with the terms of the Series A Preferred, redeem or repurchase shares of the Series A Preferred in an aggregate amount expended subsequent to the First Amendment Effective Date not exceeding $20,000,000 and (B) redeem or repurchase Parent Common Stock and options for Parent Common Stock and make payments for partial cancellation of options for Parent Common Stock in an aggregate amount expended subsequent to the First Amendment Effective Date, under this clause (B), not exceeding $127,500,000;
(ix) Parent may (A) pay, redeem or repurchase Dividends on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, any date on which no Default or Event of Default is in existence or would existbe in existence on a pro forma basis after giving effect to the payment, redemption or repurchase of such Dividend and (B) pay, redeem or repurchase any Dividend within 60 days after the date of declaration of the Dividend if at the date of declaration the Dividend would have complied with subclause (A) of this clause (ix); provided that (x) the aggregate cumulative amount of Dividends payable under this clause (ix) shall not exceed (1) the sum of $30,000,000 and 50% of the cumulative Excess Cash Flow (commencing with Excess Cash Flow in respect of Parent’s fiscal year ending June 30, 2010) minus (2) the sum of the value of all cash collateral securing obligations under all Permitted Letter of Credit Facilities and the aggregate cumulative amount of cash expended by the Credit Parties in connection with all Credit Parties Loan Purchases; (y) the Leverage Ratio for the most recent Test Period last ended on or before the date of payment of such Dividend is less than 2.00 to 1.00 on a pro forma basis after giving effect to the payment of such Dividend; and (z) there are no Revolving Loans outstanding as of the date of declaration of such Dividend (it being understood that outstanding Letters of Credit shall not be considered to be Revolving Loans for purposes of this clause (z));
(x) Parent may issue any class or series of capital stock so long as such class or series of capital stock (i) is not convertible into Indebtedness, (ii) is not due or redeemable (whether by voluntary or mandatory redemption and whether by means of a change of control provision, put right, event of default or any other similar provision) prior to the Tranche C Term Facility Final Maturity Date and (iii) does not contain terms that, directly or indirectly, establish financial covenants or establish approval right over mergers, acquisitions, dispositions or other similar matters, and must otherwise have terms reasonably satisfactory to the Administrative Agent.
(b) Parent will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay Dividends or make other distributions or pay any Indebtedness owed to either Borrower or any other Subsidiary of Parent, (b) make loans or advances to OpCo or any other Subsidiary of Parent or (c) transfer any of its properties or assets to either Borrower or any Subsidiary of Parent or (B) the ability of either Borrower or any other Subsidiary of Parent to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of:
(i) this Agreement and the other Credit Documents;
(ii) applicable law;
(iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices;
(iv) any restriction or encumbrance with respect to a Subsidiary of either Borrower imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement;
(v) any restriction or encumbrance with respect to any assets of either Borrower or any of their respective Subsidiaries imposed pursuant to an agreement which has been entered into for the sale or disposition of such assets, provided that such sale or disposition is permitted under this Agreement and such restriction or encumbrance shall only be effective against the assets to be sold or disposed of;
(vi) Liens permitted under Section 8.3 and any documents or instruments governing the terms of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens; and
(ivvii) Vanstar Financing Trust may declare and pay regularly accruing cash dividends restrictions on the Trust Preferred Securities in accordance ability of either Borrower to create Liens on investment assets acquired by either Borrower with amounts constituting deferred compensation owing to current and former employees pursuant to the terms thereof in an amount not Deferred Compensation Plan or any Deferred Compensation Agreement (or amounts equal to exceed $9,000,000 in any fiscal yearthe earnings or gains on such investment assets).
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, purposes and the Borrower will not, and will not permit any of its Subsidiaries to to, purchase or otherwise acquire for a consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any warrants for or options or warrants or stock appreciation rights issued by such Person with in respect to its capital stockof any such shares) (all of the foregoing "“Dividends"”), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower and any Permitted Joint Venture may pay Dividends (x) to the Borrower or to any Wholly-Owned Subsidiary of the BorrowerBorrower or (y) to any other investor in such Subsidiary or Permitted Joint Venture to the extent of such investor’s proportionate ownership interest in such Subsidiary or Permitted Joint Venture;
(iiib) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as there shall exist no Default or Event of Default (both before and after giving effect thereto), the Borrower may effect Common Stock Repurchases in accordance with applicable law and so long as the Borrower (x) promptly retires any such shares of Common Stock so repurchased or (y) holds such shares as treasury stock;
(c) the Borrower may pay cash Dividends in any fiscal quarter to the holders of Common Stock if and only if (x) no Default or Event of Default then exists or would existresult from the payment thereof and (y) the aggregate amount of all cash Dividends proposed to be paid in any such fiscal quarter pursuant to this clause (c), when added to the aggregate amount of all cash Dividends previously paid during the fiscal quarter in which such cash Dividends are proposed to be paid and during the immediately preceding three fiscal quarters, shall not exceed the greater of (1) $15,000,000 or (2) 35% of the Consolidated Net Income of the Borrower for the immediately preceding four fiscal quarters of the Borrower as determined from the most recently delivered Section 7.01 Financial; and
(ivd) Vanstar Financing Trust so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Borrower may declare repurchase or redeem stock appreciation rights issued by the Borrower to its directors, employees and pay regularly accruing cash dividends on officers pursuant to the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearStock Option Plans.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Dividends, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, to its stockholders (in their capacity as such) or authorize or make any other distribution, payment or delivery of property or cash to its stockholders (in their capacity as such), or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or make any loans or advances to Affiliates, or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiaryof its Restricted Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing foregoing, "DividendsDIVIDENDS"), except that:
PROVIDED, HOWEVER, that (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any direct or indirect Wholly Owned Subsidiary of the Borrower may pay cash Dividends to its parent corporation if such parent corporation is the Borrower or is both a Wholly Owned Subsidiary and a Restricted Subsidiary of the Borrower; (b) the Borrower or any Whollyof its Restricted Subsidiaries may make payments to Affiliates pursuant to and in compliance with Section 7.19; (c) after , 2003, the Borrower may pay Dividends to holders of its Series A Preferred Stock required by the Certificate of Designation of such Series A Preferred Stock as in effect on the Closing Date and the Borrower may pay non-Owned Subsidiary cash dividends in the form of the Borrower;
payment-in-kind preferred stock to holders of its Series A Preferred Stock at any time; (iiid) the Borrower may declare or pay cash dividends make payments from the Put/Call Funds to its stockholders and purchaseManagement Stockholders to redeem their "Option Shares" (as defined in the Put/Call Option Agreement), redeem or otherwise acquire shares of its capital stock or warrantsin accordance with the Put/Call Option Agreement, rights or options to acquire provided that any such shares for cash solely out redemption is effected prior to January 31, 1998; and (e) upon the death, disability or termination of 25% employment of Net Income Management Stockholders, the Borrower may repurchase from such Management Stockholders their Capital Stock of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, in an amount not exceeding $250,000 per year or $1,500,000 in the aggregate; provided in each case that no Default or Event of Default which has not been cured or waived is in existence, or would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearresult from such payment.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may beBorrower) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockRecapitalization shall be permitted;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;; and
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights (other than Exchangeable Preferred Stock) or options to acquire any such shares for cash solely out of 25% of Net Income purchase its capital stock (other than Exchangeable Preferred Stock) held by former employees of the Borrower and or any of its Subsidiaries arising following the termination of their employment, provided that (x) the only consideration paid by the Borrower in respect of such redemptions and/or purchases shall be cash and/or Shareholder Subordinated Notes, (y) the sum of (1) the aggregate amount of cash paid by the Borrower in respect of all such redemptions and/or purchases plus (2) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $750,000 in any fiscal year of the Borrower, provided that such amount shall be increased by an amount equal to the net cash proceeds received by the Borrower after March 27, 1999 the Effective Date from the sale or issuance of capital stock of the Borrower to management of the Borrower or any of its Subsidiaries (less the amount of such net cash proceeds previously applied to redeem or purchase capital stock of the Borrower pursuant to this Section 8.06(iii)) and computed on a cumulative consolidated basis, provided, that, immediately after giving effect (z) at the time of any payment permitted to such proposed actionbe made pursuant to this Section 8.06, no Default or Event of Default would existshall then exist or result therefrom;
(iv) the Borrower may pay regularly scheduled Dividends on the Preferred Stock and Qualified Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of such Preferred Stock or Qualified Preferred Stock, as the case may be, or by an increase in the liquidation preference thereof; and
(ivv) Vanstar Financing Trust the Borrower may declare issue its common stock to holders of Preferred Stock (other than Exchangeable Preferred Stock), preferred stock which is substantially similar to the Preferred Stock (other than Exchangeable Preferred Stock) and pay regularly accruing cash dividends on Qualified Preferred Stock, in each case upon the Trust Preferred Securities conversion thereof in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.thereof;
Appears in 1 contract
Samples: Credit Agreement (McMS Inc)
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiaryof its Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) that any Subsidiary of the Borrower may pay Dividends cash dividends to its parent if such parent is the Borrower or any a Wholly-Owned Subsidiary of the Borrower;.
(iiib) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (i) the Borrower may declare ability of any Subsidiary to (A) pay dividends or make other distributions or pay cash dividends any Indebtedness owed to its stockholders and purchase, redeem the Borrower or otherwise acquire shares any of its capital stock Subsidiaries, as applicable, (B) make loans or warrantsadvances to the Borrower or any Subsidiary, rights as applicable, (C) transfer any of its properties or options assets to acquire the Borrower or any such shares for cash solely out of 25% of Net Income Subsidiary, as applicable, or (D) guarantee the Obligations or (ii) the ability of the Borrower or any Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (I) this Agreement, the other Credit Documents and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal yearNote Documents and (II) Legal Requirements.
Appears in 1 contract
Samples: Credit Agreement (Superior National Insurance Group Inc)
Dividends, Etc. The Borrower Holdings will not, and will not permit any of --------------- its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other SubsidiarySubsidi ary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing fore going "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockTransaction shall be permitted;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiia) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employ ment, provided that (w) the only consideration paid by -------- Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $2,000,000 in any fiscal year of Holdings, provided that such amount shall -------- be increased by an amount equal to the proceeds received by Holdings after March 27, 1999 the Effective Date from the sale or issuance of Holdings Common Stock to management of Holdings or any of its Subsidiaries and computed on a cumulative consolidated basis, provided, that, immediately after giving effect (y) at the time of any cash payment permitted to such proposed actionbe made pursuant to this Section 8.06(iii), no Default or Event of Default shall then exist or result therefrom; and (b) so long as no Default or Event of Default then exists or would exist; andresult therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (iii)(a) of this Section 8.06;
(iva) Vanstar Financing Trust Holdings may declare redeem or purchase shares of Holdings Common Stock or options to purchase Holdings Common Stock held by the two individuals holding the offices of Chairman and pay regularly accruing cash dividends on Chief Financial Officer of the Trust Preferred Securities Borrower as of the Effective Date following the death or disability of such individuals, provided that (x) the aggregate amount paid by Holdings in accordance with respect of all such redemptions and/or purchases for (I) the terms thereof in an amount individual holding the office of Chairman shall not to exceed $9,000,000 10,000,000 and (II) the individual holding the office of Chief Financial Officer does not exceed $2,000,000 and (y) at the time of any payment permitted to be made pursuant to this Section 8.06(iv), no Default or Event of Default shall then exist or result therefrom and (b) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as the cash proceeds thereof are promptly used by Holdings for the purposes described in clause (iv)(a) of this Section 8.06;
(v) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings to (x) pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, provided -------- that the aggregate amount of cash Dividends paid pursuant to this clause (x) shall not during any fiscal year.year of the Borrower exceed $1,000,000 or (y) pay salaries or other compensation of employees who perform services for Holdings and the Borrower, provided that the aggregate amount of cash Dividends paid pursuant to this clause (y) shall not during any fiscal year of the Borrower exceed $250,000;
(vi) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided that (x) the amount of cash Dividends paid pursuant to this clause --------
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any its stockholders, provided that with respect to Dividends paid by non-Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchaseSubsidiaries, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising must receive at least their proportionate share of any Dividends paid by any such Subsidiary;
(ii) The Borrower may redeem or purchase shares of the Common Stock or options to purchase Common Stock, respectively, held by former employees of the Borrower or any of its Subsidiaries following the termination of their employment, provided that (w) the only consideration paid by the Borrower in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $200,000 in any Measurement Period of the Borrower, provided that such amount shall be increased by an amount (not to exceed $500,000 for purposes of this clause (ii)) equal to the proceeds received by the Borrower after March 27the Initial Borrowing Date from the sale or issuance of Common Stock to management of the Borrower or any of its Subsidiaries and (y) at the time of any cash payment permitted to be made pursuant to this Section 8.06(ii), 1999 and computed on including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.shall then exist or result therefrom;
Appears in 1 contract
Samples: Credit Agreement (Labtec Inc /Ma)
Dividends, Etc. (a) The US Borrower will not, and will not --------------- permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the US Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or other equity holders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stockstock or other equity interests (other than the issuance of common stock of the US Borrower upon conversion of any convertible preferred stock that may be issued by the US Borrower), now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the US Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock or other equity interests of the US Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stockstock or other equity interests) (all of the foregoing "Dividends"), except that:
: (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iix) any Subsidiary of the US Borrower may pay Dividends to the US Borrower or any Wholly-Owned other Subsidiary of the Borrower;
US Borrower and (iiiy) repurchases may be made by the US Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock and/or options or warrantswarrants to purchase its capital stock from employees, rights management or options to acquire any such shares for cash solely out of 25% of Net Income directors of the US Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as (i) no Default under Section 9.01 or Event of Default exists at the time of such purchase or would existresult therefrom and (ii) the aggregate amount paid by the US Borrower in connection with all such repurchases does not exceed $100,000 in any fiscal year of the US Borrower.
(b) The US Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any such Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the US Borrower or any other Credit Party, (b) make loans or advances to the US Borrower or any other Credit Party, (c) transfer any of its properties or assets to the US Borrower or any other Credit Party, or (B) the ability of the US Borrower or any other Credit Party, to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; and
(ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; and (iv) Vanstar Financing Trust may declare Liens permitted under Sections 8.03(i), (j) and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with (k), and any documents or instruments governing the terms thereof in an amount not of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to exceed $9,000,000 in any fiscal yearthe assets subject to such Liens.
Appears in 1 contract
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any its shareholders, provided that if such Subsidiary is not a Wholly-Owned Subsidiary Subsidiary, then any such Dividends must be paid proportionately to all shareholders of such Subsidiary;
(ii) so long as no Default or Event of Default exists or would result therefrom, Frontier Financing Trust may pay regularly scheduled dividends on its 6-1/4% Convertible Trust Originated Preferred Securities, provided that the aggregate amount of such dividends in any fiscal year of the BorrowerBorrower shall not exceed $10,800,000;
(iii) so long as no Default or Event of Default exists or would result therefrom, the Borrower may declare or pay cash dividends on its common stock and/or its preferred stock so long as the aggregate amount of Dividends made in any fiscal year pursuant to its stockholders and purchase, redeem or otherwise acquire shares this clause (iii) does not exceed the sum of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25(x) 5% of the Borrower's Consolidated Net Income Worth as of the last day of the most recently ended fiscal year plus (y) any amount that would have been permitted to be paid pursuant to Section 7.06(a)(ii) above in such year but is not so paid because some or all of the Convertible Preferred Securities referred to in such Section have been converted to common stock of the Borrower; and
(iv) the Borrower may repurchase its common stock and/or options or warrants to purchase its common stock from directors, former directors, management or former management of the Borrower and its Subsidiaries arising after March 27in accordance with arrangements made with such directors or management, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, provided that (x) no Default or Event of Default exists at the time of any such purchase or would exist; and
result therefrom and (y) the aggregate amount expended by the Borrower pursuant to this clause (iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on at any time, when added to the Trust Preferred Securities in accordance with aggregate amount theretofore expended pursuant to this clause (iv) after the terms thereof in an amount Effective Date, shall not to exceed $9,000,000 in any 7.5% of the Borrower's Consolidated Net Worth as of the last day of the most recently ended fiscal year.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (d) guarantee the Obligations or (B) the ability of the Borrower or any Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (i) this Agreement and the other Credit Documents, (ii) Legal Requirements, (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices, (iv) purchase money obligations for property acquired in the ordinary course of business, so long as such obligations are permitted under this Agreement, (v) any restriction or encumbrance with respect to a Subsidiary of the Borrower imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement, and (vi) Liens permitted under Section 7.03 and any documents or instruments governing the terms of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any --------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the BorrowerGuarantor;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Borrower Common Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase Borrower Common Stock, as the case may be, held by former employees of the Borrower and or any of its Subsidiaries arising following the termination of their employment (by death, disability or otherwise), provided that (x) the only consideration paid by the Borrower -------- in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven and (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Initial Borrowing Date, 1999 shall not exceed $5,000,000, and computed on (z) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default would exist; andshall then exist or result therefrom;
(iviii) Vanstar Financing Trust so long as no Default or Event of Default exists or would result therefrom, the Borrower may declare and pay regularly accruing cash dividends Dividends on the Trust Disqualified Preferred Securities Stock issued pursuant to Section 9.13(c), with such Dividends to be paid in accordance with the terms of the respective certificate of designation therefor;
(iv) any Subsidiary of the Borrower that is not a Wholly-Owned Subsidiary may pay cash Dividends to its shareholders or partners generally, so long as the Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interest in an amount the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto);
(v) the Recapitalization shall be permitted; and
(vi) Pacer Logistics may pay regularly accruing Dividends with respect to Pacer Logistics Preferred Stock through the issuance of additional shares of Pacer Logistics Preferred Stock in accordance with the terms of the relevant Equity Financing Documents governing the same;
(vii) to the extent the issuance of Borrower Exchange PIK Preferred Stock or Borrower Common Stock in exchange for Pacer Logistics Preferred Stock may be deemed to constitute a Dividend, same shall be permitted so long as (x) in the case of any such issuance of Borrower Exchange PIK Preferred Stock, any such issuance (and exchange) is consummated in accordance (and consistent) with the requirements of Section 9.13(e) and (y) in the case of any issuance of Borrower Common Stock, any such issuance (and exchange) is consummated in accordance with (and consistent) with the requirements of the relevant Equity Financing Documents governing the Pacer Logistics Preferred Stock;
(viii) on and after the issuance of Borrower Exchange PIK Preferred Stock in accordance with the requirements of Section 9.13(e), the Borrower may pay regularly accruing Dividends with respect thereto through the issuance of additional shares of Borrower Exchange PIK Preferred Stock in accordance with the terms of the Borrower Exchange PIK Preferred Stock Documents governing the same; and
(ix) the Borrower may pay regularly accruing Dividends with respect to Qualified Preferred Stock through the issuance of additional shares of Qualified Preferred Stock (but not to exceed $9,000,000 in any fiscal yearcash) in accordance with the terms of the documentation governing the same.
Appears in 1 contract
Samples: Credit Agreement (Pacer Express Inc)
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, to its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation or similar rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends cash dividends to the Borrower or any to a Wholly-Owned Subsidiary of the BorrowerBorrower which is a Subsidiary Guarantor;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default has occurred and is continuing or would existresult therefrom, (x) the Borrower may repurchase shares of Common Stock from Management Holders so long as the sole consideration paid by the Borrower and its Subsidiaries in connection with such repurchases is the issuance of the subordinated notes described in Section 8.04(h) and (y) the Borrower may pay interest on such subordinated notes, provided that the sum of all such interest payments under this clause (ii) together with the amount of all repurchases permitted under clause (iii) below, shall not exceed $500,000 in any given year; and
(iii) so long as no Default pursuant to Section 9.01 or 9.05 or Event of Default has occurred and is continuing or would result therefrom, the Borrower may redeem or repurchase for cash, at fair value, the capital stock of the Borrower (or options to purchase capital stock) from any employee of the Borrower upon the death, disability, retirement or other termination of such employee, provided, that all such repurchases under this clause (iii) together with all interest payments under clause (ii) above, shall not exceed $500,000 in any given year.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary of the Borrower to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any other Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any other Subsidiary of the Borrower, (c) transfer any of its properties or assets to the Borrower or any other Subsidiary of the Borrower or (B) the ability of the Borrower or any other Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of:
(i) this Agreement and the other Credit Documents;
(ii) the Senior Notes Documents;
(iii) applicable law;
(iv) Vanstar Financing Trust may declare customary non-assignment provisions entered into in the ordinary course of business and pay regularly accruing cash dividends on consistent with past practices;
(v) any restriction or encumbrance with respect to a Subsidiary of the Trust Preferred Securities in accordance with Borrower imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; and
(vi) Liens permitted under Section 8.03 and any documents or instruments governing the terms thereof in an amount not of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to exceed $9,000,000 in any fiscal yearthe assets subject to such Liens.
Appears in 1 contract
Dividends, Etc. The Holdings and the Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any Person paying such Subsidiary, as the case may bedividend) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for considerationa consideration (other than consideration in the form of capital stock of the Person paying the Dividend), any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, purposes and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of Holdings or the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any warrants for or options or warrants or stock appreciation rights issued by such Person with in respect to its capital stockof any such shares) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower may pay Dividends dividends to the Borrower or any Wholly-Owned Subsidiary of the BorrowerBorrower which owns any equity interests in the respective such Subsidiary;
(iiib) any Subsidiary of the Borrower which is not a Wholly-Owned Subsidiary may pay dividends to its shareholders generally, so long as the Borrower and/or any other Subsidiary of the Borrower which owns equity interests in such Subsidiary receives at least its proportionate share (based upon its respective equity interests) of any dividend so paid;
(c) the Borrower may declare or pay cash dividends Dividends to Holdings in an amount necessary and to the extent immediately used by Holdings to (i) pay accrued fees and expenses arising from the Transaction, (ii) pay taxes payable by Holdings (whether for itself alone or for itself and its stockholders Subsidiaries), in each case to the extent then due and purchasepayable and to the extent not otherwise paid by the Borrower pursuant to the Tax Sharing Agreement, redeem or otherwise acquire shares provided that in no event shall the amount of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of payments made by the Borrower and its Subsidiaries arising after March 27, 1999 pursuant to the Tax Sharing Agreement (including for this purpose all payments made pursuant to preceding clause (ii)) exceed the amounts required to be paid by the Borrower pursuant to the Tax Sharing Agreement as in effect on the Restatement Effective Date and computed on a cumulative consolidated basis, provided, that, immediately after without giving any effect to any modifications thereto without the consent of the Required Lenders, (iii) pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses, including costs and expenses in connection with ongoing reporting and related requirements, so long as the aggregate amount of such proposed actionpayments does not exceed $250,000 in any fiscal year, and (iv) so long as no Default or Event of Default would exist; and
then exists, pay the repurchase price payable to any officer or employee (ivor their estates) Vanstar Financing Trust may declare of Holdings, the Borrower or any of their respective Subsidiaries, in respect of their stock or options to purchase stock in Holdings, upon death, disability or termination of employment of such officers and pay regularly accruing cash dividends on employees, provided, however, that the Trust Preferred Securities in accordance with aggregate amount of all such repurchases after the terms thereof in an amount Restatement Effective Date shall not to exceed $9,000,000 in any fiscal year2,000,000.
Appears in 1 contract
Samples: Credit Agreement (Acg Holdings Inc)
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stockstock (other than the issuance of common stock of the Borrower upon conversion of any convertible preferred stock that may be issued by the Borrower), now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
: (i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iix) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
Borrower and (iiiy) repurchases may be made by the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock and/or options or warrants, rights warrants to purchase its capital stock from management or options to acquire any such shares for cash solely out of 25% of Net Income directors of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as (i) no Default under Section 9.01 or Event of Default would existexists at the time of such purchase and (ii) the aggregate amount paid by the Borrower in connection with all such repurchases does not exceed $500,000 in any fiscal year of the Borrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any such Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary Guarantor, (b) make loans or advances to the Borrower or any Subsidiary Guarantor, (c) transfer any of its properties or assets to the Borrower or any Subsidiary Guarantor, or (B) the ability of the Borrower or any Subsidiary Guarantor, to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; and
(ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) Vanstar Financing Trust may declare Liens permitted under Section 8.03(j), and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with any documents or instruments governing the terms thereof of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens; and (v) until the same has be repaid in an amount not to exceed $9,000,000 in any fiscal yearfull, the agreements and instruments governing and evidencing the Designated New Zealand Indebtedness.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(ia) the Borrower may purchase, redeem or otherwise acquire pay regularly accruing dividends on each issuance of Preferred Stock through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with the proceeds received by Preferred Stock, PROVIDED that the Borrower from the substantially concurrent issue may pay such regularly accruing dividends on its Preferred Stock in cash so long as no Default or Event of new shares of its common stockDefault exists at such time or would result therefrom;
(iib) any Subsidiary of the Borrower may pay Dividends to the Borrower or to any Wholly-Owned Restricted Subsidiary of the Borrower;
(iiic) the Borrower any Partially-Owned Restricted Subsidiary may declare or pay cash dividends Dividends to its stockholders and purchasestockholders, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of PROVIDED that the Borrower and its Restricted Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to must receive at least their proportionate share of any Dividends paid by such proposed action, Subsidiary;
(d) so long as no Default or Event of Default exists at such time or would exist; and
result therefrom the Borrower may issue its Subordinated Exchange Debentures in exchange for its Series D Preferred Stock in accordance with the terms thereof, (ivy) Vanstar Financing Trust the Borrower may declare and pay regularly accruing cash dividends on the Trust issue its Subordinated Exchange Debentures in exchange for its Series F Preferred Securities Stock in accordance with the terms thereof and (z) the Borrower may issue its Subordinated Exchange Debentures in an exchange for its Series H Preferred Stock in accordance with the terms thereof, PROVIDED that in each such case, the Borrower shall have determined, with respect to such issuance, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a PRO FORMA Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
(e) the Borrower may exchange shares of its common stock in replacement for shares of outstanding Preferred Stock;
(f) the Borrower may issue Permitted Replacement Preferred Stock so long as either (x) such stock is issued in exchange for or (y) all of the proceeds from such issuance are used to redeem or repurchase, shares of outstanding Preferred Stock;
(g) the Borrower may redeem or repurchase shares of its common stock from management investors; PROVIDED that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not to exceed the sum of (i) $9,000,000 10,000,000 in any fiscal yearyear or $25,000,000 in the aggregate after the Effective Date and (ii) the amount of cash proceeds received by the Borrower in respect of the issuance of common equity to management investors on or after the Effective Date;
(h) the Borrower and its Subsidiaries may enter into transactions permitted under Section 8.05(g);
(i) the Borrower and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may redeem or repurchase shares of its Preferred Stock at a price equal to the liquidation preference thereof plus accrued but unpaid dividends thereon and any applicable premium with respect thereto in exchange for, or with the proceeds of, Additional Preferred Stock and/or Indebtedness incurred under Sections 8.04(h) and/or 8.04(j) (it being understood and agreed that such redemption and/or repurchase need not occur contemporaneously with the issuance of such Additional Preferred Stock or Indebtedness);
(k) so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may declare and pay cash Dividends to the holders of its common stock (including, without limitation, repurchases of shares of its common stock), PROVIDED that (x) the aggregate amount of cash Dividends paid pursuant to this clause (k) during any fiscal year of the Borrower does not exceed $75,000,000 and (y) the Borrower shall have determined, in connection with such Dividend, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a PRO FORMA Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement; and
(l) the Borrower may pay additional cash Dividends to the holders of its common stock so long as (x) no Default or Event of Default exists at such time or would result therefrom, (y) the Leverage Ratio at such time is less than 4.00:1.00 and (z) the Borrower shall have determined, in connection with such Dividend, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a PRO FORMA Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Primedia Inc)
Dividends, Etc. The Holdings and the Borrower will not, and will -------------- not permit any of its their respective Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock or preferred stock (provided such preferred stock meets the requirements of the Borrower Section 9.13(c)(ii), --------- (iii), (iv) and (v)) of Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as Subsidiary of the case may be, Borrower now or hereafter outstanding (or any options or warrants or such stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends", it being understood that the payments made in accordance with the ---------- clauses contained in the proviso of Section 9.06 shall not be deemed to be Dividends), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiib) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, as long as no Default or Event of Default would exist; and
shall then exist or result therefrom, (ivi) Vanstar Financing Trust the Borrower may declare and pay regularly accruing cash dividends a Dividend on the Trust Preferred Securities Borrower's Common Stock, and (ii) Holdings may declare or pay a Dividend on Holdings' Common Stock, in accordance with the terms thereof each case in an aggregate amount not to exceed $9,000,000 10,000,000;
(c) Borrower or any Subsidiary of Borrower may make payments to Holdings in an amount not in excess of the federal and state (in such states that permit consolidated or combined tax returns) income tax liability that Holdings, the Borrower and its Subsidiaries would have been liable for if Holdings, the Borrower and its Subsidiaries had filed their taxes on a stand-alone basis; provided that such payments shall be made by -------- Holdings no earlier than five days prior to the date on which Holdings is required to make its payments to the Internal Revenue Service or the applicable taxing authority, as applicable;
(d) if no Default or Event of Default shall have occurred and be continuing, Borrower may declare and pay Dividends to Holdings so that Holdings may repurchase Holdings Common Stock (or rights to acquire Holdings Common Stock) from members of Holdings' or the Borrower's management in connection with certain executive employment agreements in an aggregate amount not to exceed $750,000 in any fiscal year;
(e) if no Default or Event of Default shall have occurred and be continuing, Borrower may declare and pay Dividends to Holdings to pay reasonable accounting fees and other support services provided to the Borrower and to pay Holdings' operating expenses, in an aggregate amount not to exceed $500,000 in any fiscal year; and
(f) Borrower may declare and pay Dividends to Holdings in connection with any payment obligations (including administration costs and expenses) under (i) Holdings' stock purchase program offered to employees of Holdings and/or Subsidiaries of Holdings; (ii) the Employee Stock Option Plan; or (iii) options to purchase Holdings Common Stock in an aggregate amount not to exceed $500,000 in any fiscal year.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Borrower Common Stock and Additional Permitted Preferred Stock or options to acquire any such shares for cash solely out of 25% of Net Income of purchase Borrower Common Stock or Additional Permitted Preferred Stock, as the Borrower and its Subsidiaries arising after March 27case may be, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, held by former employees of
(iii) so long as no Default or Event of Default then exists or would exist; and
result therefrom, the Borrower may redeem shares of Preferred Stock (iv) Vanstar Financing Trust may declare and pay regularly accruing cash together with unpaid dividends on the Trust Preferred Securities thereon which have accumulated in accordance with the terms thereof of such Preferred Stock (as such terms are in an amount not effect on the Closing Date or as otherwise permitted by this Agreement) to exceed $9,000,000 the date fixed for such redemption) (x) with the proceeds of Borrower Common Stock, if, after giving pro forma effect to such sale of common stock and such redemption of Preferred Stock as if such events had occurred on the last day of the most recently ended Test Period, the Leverage Ratio would be less than or equal to 4.5 to 1.0 and (y) with the proceeds of Additional Permitted Preferred Stock;
(iv) Borrower Preferred Stock issued as a dividend on other Borrower Preferred Stock;
(v) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may make the Pre-Merger Stock Payments; and
(vi) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay the cash portion of the consideration for the Merger in any fiscal yearaccordance with the Merger Agreement.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare Declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiarydividends, as the case may be) or return any capital topurchase, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase defease or otherwise acquire for consideration value any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or any warrants, rights or options to acquire such capital stock, now or hereafter outstanding, return any capital to its stockholders as such, make any distribution of assets, capital stock, warrants, rights, options, obligations or securities to its stockholders as such or issue or sell any capital stock or any warrants, rights or options to acquire such capital stock, or permit any of their Subsidiaries to do any of the foregoing or permit any of their Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any capital stock of PolyVision or the Borrowers or any warrants, rights or options to acquire such capital stock or to issue or sell any such shares for cash capital stock or any warrants, rights or options to acquire such capital stock, except:
(a) PolyVision and any Borrower may declare and pay dividends and distributions payable solely out in common stock of 25% of Net Income PolyVision or such Borrower; and the Borrowers and Subsidiaries may, subject to the applicable subordination provisions of the Borrower Senior Subordinated Note Agreement, pay dividends and distributions to PolyVision in an amount equal to interest payments (but no sooner than two (2) days prior to the due date of such interest payments) payable from time to time in respect of the Senior Subordinated Notes, and PolyVision may, at any time and from time to time, for such consideration as the Board of Directors of PolyVision may approve, issue shares of its Subsidiaries arising capital stock (but if preferred stock, only on terms and conditions satisfactory to the Required Lenders) and warrants, options, convertible securities and other rights to purchase capital stock of PolyVision (including the stock contemplated by Section 3.1(c)(i) above); PROVIDED that no material expense in connection therewith shall be incurred after March 27the date hereof if, 1999 and computed on a cumulative consolidated basis, provided, that, immediately before or after giving effect to the incurrence thereof, any Default or Event of Default then exists or would exist;
(b) A Subsidiary of a Borrower may declare and pay dividends and distributions to any Borrower;
(c) The Borrowers (other than PolyVision) and their Subsidiaries may pay dividends and distributions to PolyVision;
(d) PolyVision may declare and pay dividends in cash with respect to its preferred stock subject to the satisfaction of each of the following conditions on the date of such proposed action, dividend payment and after giving effect thereto: (i) no Default or Event of Default shall have occurred and be continuing or would existexist after giving effect thereto;
(ii) the ratio of Consolidated Debt to EBITDA for PolyVision and its Subsidiaries for the preceding four fiscal quarters as at the last day of the fiscal quarter most recently ended prior to the date of such dividend payments shall not exceed 4.75:1;
(iii) such dividends shall not exceed $500,000 in the aggregate in any Fiscal Year; PROVIDED, HOWEVER, that if the ratio referred to in subparagraph (ii) above does not exceed 4:1, such dividends may exceed $500,000 but may in no event exceed $1,000,000 in the aggregate in any Fiscal Year;
(iv) no such dividend shall be declared or paid except quarterly within thirty (30) days after delivery of required quarterly financial statements; and
(ivv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on PolyVision shall have delivered to the Trust Preferred Securities Administrative Agent, at least five (5) Business Days prior to the date of the proposed dividend payment, a certificate of a senior financial officer setting forth computations in accordance with reasonable detail demonstrating satisfaction of the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.foregoing conditions as at the date of such certificate; and
Appears in 1 contract
Samples: Credit Agreement (Polyvision Corp)
Dividends, Etc. The Borrower (a) SNIG will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of SNIG, the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends cash dividends to its parent if such parent is the Borrower or any a Wholly-Owned Subsidiary of the Borrower;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders SNIG at the time of, and purchasein an amount equal to, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of interest payments on the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, Subordinated Debt so long as no Default or Event of Default exists or would existexist immediately after giving effect thereto; and
(iviii) Vanstar Financing Trust the Borrower may declare and pay regularly accruing cash dividends to SNIG from time to time to enable SNIG to pay operating expenses arising in the ordinary course of business and which are then due and payable (but excluding interest payments on Subordinated Debt), provided that (x) SNIG promptly uses the Trust Preferred Securities in accordance with proceeds of any such dividends to pay such costs and expenses, (y) the terms thereof in an aggregate amount not to exceed $9,000,000 of such dividends in any fiscal yearyear of the Borrower shall not exceed $250,000 and (z) no Default or Event of Default exists or would exist immediately after giving effect thereto.
(b) SNIG will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (i) the ability of any Subsidiary to (A) pay dividends or make other distributions or pay any Indebtedness owed to SNIG or any of its Subsidiaries, (B) make loans or advances to SNIG or any Subsidiary, (C) transfer any of its properties or assets to SNIG or any Subsidiary or (D) guarantee the Obligations or (ii) the ability of SNIG or any Subsidiary of SNIG to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (I) this Agreement, the other Credit Documents and the Subordinated Debt Documents and (II) Legal Requirements.
Appears in 1 contract
Samples: Credit Agreement (Superior National Insurance Group Inc)
Dividends, Etc. The Borrower will not, and will not permit any --------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiiii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Borrower Common Stock or options to acquire any such shares for cash solely out of 25% of Net Income purchase Borrower Common Stock, as the case may be, held by former employees of the Borrower and or any of its Subsidiaries arising following the termination of their employment (by death, disability or otherwise) provided that (x) the only consideration paid by the Borrower in -------- respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases, plus (B) the aggregate amount of liabilities so forgiven and (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Third Restatement Effective Date, 1999 shall not exceed $5,000,000, and computed on (z) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default would exist; andshall then exist or result therefrom;
(iviii) Vanstar Financing Trust so long as no Default or Event of Default exists or would result therefrom, the Borrower may declare and pay regularly accruing cash dividends Dividends on the Trust Disqualified Preferred Securities Stock (excluding in any event PIK Preferred Stock) issued pursuant to Section 9.13(c), with such Dividends to be paid in accordance with the terms of the respective certificate of designation therefor;
(iv) any Subsidiary of the Borrower that is not a Wholly-Owned Subsidiary may pay cash Dividends to its shareholders or partners generally, so long as the Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in an amount the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto);
(v) the Borrower may pay regularly accruing Dividends with respect to the PIK Preferred Stock (whether outstanding on the Third Restatement Effective Date or issued thereafter pursuant to the following clause (x)) (x) through the issuance of additional shares of PIK Preferred Stock (but not to exceed $9,000,000 in cash) and (y) at any time after the PIK Trigger Date and so long as no Default or Event of Default then exists or would result therefrom, in cash, in any fiscal yearsuch case in accordance with the terms of the documentation governing the same;
(vi) the Borrower may pay regularly accruing Dividends with respect to Qualified Preferred Stock through the issuance of additional shares of Qualified Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; and
(vii) the Borrower may redeem PIK Preferred Stock with the net proceeds (after giving effect to the application of Net Cash Proceeds required by clause (y) below) of any issuance of Borrower Common Stock pursuant to a Qualified IPO in accordance with the terms of the PIK Preferred Stock Documents, so long as (x) no Default or Event of Default then exists or would result therefrom and (y) the Net Cash Proceeds from any such issuance of Borrower Common Stock are first applied to repay Term Loans and/or reduce the Total Revolving Loan Commitment to the extent required by Section 4.02(e).
Appears in 1 contract
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiaryof its Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Any Subsidiary of the Borrower may pay Dividends cash dividends to its parent if such parent is the Borrower or any a Wholly-Owned Subsidiary of the Borrower;
(ii) The Borrower may redeem or purchase its capital stock solely with the cash proceeds of capital stock issued by the Borrower after the Initial Borrowing Date, to the extent such proceeds are not required to be applied to prepay the Term Loans pursuant to Section 3.02;
(iii) the The Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income purchase its capital stock held by former officers and employees of the Borrower and or any of its Subsidiaries arising after March 27following the termination of their employment, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to provided that (x) at the time of any such proposed action, redemption or purchase no Default or Event of Default would existshall exist or result therefrom and (y) the aggregate amount paid by the Borrower in respect of all such redemptions and purchases shall not exceed $1,000,000 in any fiscal year of the Borrower; and
(iv) Vanstar Financing Trust The Borrower may declare and pay regularly accruing cash dividends on the Trust Preferred Securities preferred stock issued in accordance with Section 7.14(a) through the terms thereof issuance of additional shares of such preferred stock, or by accrual or accretion, but not in an amount cash.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exceed $9,000,000 in exist any fiscal year.encumbrance or restriction which prohibits or otherwise restricts (i) the ability of any Subsidiary to (A) pay dividends or make other distributions or pay 50 any Indebtedness owed to the Borrower or any of its Subsidiaries, as applicable, (B) make loans or advances to the Borrower or any Subsidiary, as applicable, (C) transfer any of its properties or assets to the Borrower or any Subsidiary, as applicable, or (D) guarantee the Obligations or (ii) the ability of the Borrower or any Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (I) this Agreement and the other Credit Documents and (II)
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Dividends, Etc. The Borrower Holdings will not, and will not permit any of --------------- its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiiii) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock, respectively, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment, provided that (w) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $1,000,000 in any fiscal year of Holdings, provided that such amount shall be increased by an amount (not to exceed $5,000,000 for purposes of this clause (ii)) equal to the proceeds received by Holdings after March 27the Initial Borrowing Date from the sale or issuance of Holdings Common Stock to management of Holdings or any of its Subsidiaries and (y) at the time of any cash payment permitted to be made pursuant to this Section 8.06(ii), 1999 and computed on including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom;
(iii) so long as no Default or Event of Default then exists or would exist; andresult therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (ii) of this Section 8.06;
(iv) Vanstar Financing Trust the Borrower may declare (x) make cash payments to Holdings pursuant to the Holdings Services Agreement and (y) pay regularly accruing cash dividends Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings to pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, or to pay salaries or other compensation of employees who perform services for Holdings and the Borrower, provided that the aggregate amount of cash payments and cash Dividends paid pursuant to this clause (iv) shall not during any fiscal year of the Borrower exceed $500,000;
(v) the Borrower may pay cash Dividends to Holdings, provided that (x) the proceeds thereof are immediately used by Holdings to make the payments referred to in Section 8.07(iii) or (iv) and (y) such cash Dividends are only made at the times and up to the amounts permitted by Section 8.07(iii) and (iv) and the last sentence of Section 8.07;
(vi) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided that (x) the amount of cash Dividends paid pursuant to this clause (vi) to enable Holdings to pay federal income taxes at any time shall not exceed, when added to the amount of payments made pursuant to the Holdings Tax Allocation Agreement for such purposes, the lesser of (A) the amount of such federal income taxes owing by Holdings at such time for the respective period and (B) the amount of such federal income taxes that would be owing by the Borrower and its Subsidiaries on a consolidated basis for such period if determined without regard to Holdings' ownership of the Trust Borrower and (y) any refunds shall promptly be returned by Holdings to the Borrower;
(vii) the liquidation preference of the Holdings Preferred Securities Stock may accrete in accordance with the terms of the Holdings Preferred Stock Certificate;
(viii) in the event that Holdings consummates an initial registered public offering of Holdings Common Stock, Holdings may redeem shares of its outstanding Holdings Preferred Stock as and to the extent permitted by Section 8.13(i)(y);
(ix) Holdings may pay regularly scheduled Dividends on the Permitted Holdings PIK Securities (to the extent issued as preferred stock) pursuant to the terms thereof solely through the issuance of additional shares of such Permitted Holdings PIK Securities, provided that in lieu of issuing additional shares of such Permitted Holdings PIK Securities as Dividends, Holdings may increase the liquidation preference of the shares of Permitted Holdings PIK Securities in respect of which such Dividends have accrued; and
(x) the Borrower may pay cash Dividends to Holdings on the Initial Borrowing Date in an aggregate amount not to exceed $9,000,000 the amount needed by Holdings to redeem in any fiscal yearfull the Holdings Senior Subordinated Debt and the Holdings Junior Subordinated Debt in accordance with Section 5.01(h) provided that the proceeds thereof are immediately used by Holdings to redeem the Holdings Senior Subordinated Debt and the Holdings Junior Subordinated Debt.
Appears in 1 contract
Dividends, Etc. The Borrower (a) Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiaryof its Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower Any Subsidiary of Holdings may purchase, redeem pay cash dividends to its parent if such parent is Holdings or otherwise acquire shares a Wholly-Owned Subsidiary of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockHoldings;
(ii) any Subsidiary of the Borrower Holdings may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of purchase its capital stock at any time so long as no Default or warrants, rights Event of Default exists at such time or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, would exist immediately after giving effect to such proposed actionredemption or purchase;
(iii) Holdings may pay cash dividends on its capital stock in any fiscal quarter, provided that the aggregate amount of dividends paid in any fiscal quarter shall not exceed an amount equal to the greater of (A) $0.26 multiplied by the number of shares of Holdings' common stock outstanding as of the record date declared by Holdings' Board of Directors for such fiscal quarter; provided that to the extent there is more than one record date for such fiscal quarter, the first record date for such fiscal quarter shall be used in determining the numbers of shares of such Holdings' common stock outstanding for such period and (B) an amount, if positive, equal to 50% of Holdings' Consolidated Net Income for the four most recently completed consecutive fiscal quarters of Holdings ending on the last day of such fiscal quarter (taken as one accounting period) divided by four; provided that no dividends may be paid pursuant to this Section 4.06(a)(iii) if any Default or Event of Default exists at the time of the payment of such cash dividends or would exist immediately after giving effect thereto;
(iv) LaSalle Re Holdings or Holdings may pay regularly accruing dividends on its LaSalle Preferred Stock in accordance with the terms thereof so long as no Default or Event of Default exists at such time or would existexist immediately after giving effect to the payment of such dividend; and
(ivv) Vanstar Financing Trust LaSalle Re Holdings or Holdings may declare and pay regularly accruing cash dividends on its preferred stock issued pursuant to the Trust Preferred terms of the Cat E Put Securities in accordance with the terms thereof in an amount so long as no Default or Event of Default exists at such time or would exist immediately after giving effect to the payment of such dividend.
(b) Holdings will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exceed $9,000,000 in exist any fiscal yearencumbrance or restriction which prohibits or otherwise restricts (i) the ability of any Subsidiary to (A) pay dividends or make other distributions or pay any Indebtedness owed to Holdings or any of its Subsidiaries, as applicable, (B) make loans or advances to Holdings or any Subsidiary, as applicable, (C) transfer any of its properties or assets to Holdings or any Subsidiary, as applicable, or (D) guarantee the Obligations or (ii) the ability of Holdings or any Subsidiary of Holdings to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (I) this Holdings Guaranty and the other Credit Documents, (II) the Trenwick Senior Notes (III) and Legal Requirements.
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders stockholders, members and/or other owners of Equity Interests or authorize or make any other distribution, payment or delivery of property or cash to its stockholders stockholders, members and/or other owners of Equity Interests as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, Equity Interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such sharesEquity Interests), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock Equity Interests of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stockEquity Interests) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to the Borrower or any to a Wholly-Owned Subsidiary of the BorrowerBorrower which owns equity therein;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may declare and pay cash Dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the Equity Interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary);
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default exists at the time of the respective Dividend, redemption or repurchase or would existexist immediately after giving effect thereto, the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) to allow Holdings to redeem or repurchase (and Holdings may redeem or repurchase), contemporaneously with such Dividend, Equity Interests of Holdings from officers, employees and directors (or their estates) after the death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option plan or any employee stock ownership plan that has been approved by the Board of Directors of Holdings, PROVIDED that the aggregate principal amount of Dividends made by the Borrower to Holdings pursuant to this clause (iii), and the aggregate amount paid by Holdings in respect of all such Equity Interests so redeemed or repurchased, in any calendar year shall not, in either case, exceed $2,000,000;
(iv) the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) so long as the proceeds thereof are promptly used by Holdings to pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, PROVIDED that the aggregate amount of cash Dividends paid pursuant to this clause (iv) during any fiscal year of Holdings shall not exceed $1,000,000;
(v) the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) in the amounts and at the times of any payment by Holdings in respect of taxes, PROVIDED that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay Federal and state income taxes at any time shall not exceed the amount of such Federal and state income taxes actually owing by Holdings at such time for the respective period and (y) any refunds received by Holdings shall promptly be returned by Holdings to the Borrower;
(vi) before the occurrence of a Qualified Public Offering, Holdings may pay Dividends with the net cash proceeds of substantially contemporaneous sales or issuances of its capital stock (other than issuances or sales of its capital stock pursuant to a public offering or Qualified Public Offering) to Persons other than its Subsidiaries;
(vii) any non-Wholly-Owned Subsidiary of the Borrower may repurchase or redeem its outstanding minority Equity Interests held by third Persons, provided that the aggregate amount of payments made in respect of all such repurchases and redemptions shall not exceed $1,000,000;
(viii) the Borrower may pay cash Dividends to Holdings (through Intermediate Holdco to the extent same has been created) in the amounts and at the times of any required payments by Holdings (which will actually be paid with such cash Dividends) pursuant to the Management Agreement, so long as such amounts are then permitted to be paid pursuant to Section 8.10(v) or (vi), as the case may be; and
(ivix) Vanstar Financing Trust Holdings may declare return to Carlyle and pay regularly accruing other Persons cash dividends on equity contributions initially made by Carlyle or such other Persons to Holdings to finance Permitted Acquisitions, Capital Expenditures or investments in Joint Ventures or Foreign Subsidiaries (in each case permitted hereunder), that have not been utilized for such purposes, provided that (i) such cash equity contributions are returned within 180 days following the Trust Preferred Securities in accordance with respective cash equity contribution made by Carlyle or such other Person to Holdings and (ii) such cash equity contributions have not theretofore been contributed by Holdings to the terms thereof in an amount not to exceed $9,000,000 in Borrower or any fiscal yearSubsidiary thereof.
Appears in 1 contract
Dividends, Etc. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Company will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Company or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(ia) the Borrower Company may purchase, redeem or otherwise acquire pay regularly accruing dividends on each issuance of Preferred Stock through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with Preferred Stock, provided that the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower Company may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay such regularly accruing dividends on its Preferred Stock in cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default exists at such time or would exist; andresult therefrom;
(ivb) Vanstar Financing Trust any Subsidiary of the Company may declare pay Dividends to the Company or to any Wholly-Owned Restricted Subsidiary of the Company;
(c) any Partially-Owned Restricted Subsidiary may pay cash Dividends to its stockholders, provided that the Company and pay regularly accruing cash dividends on its Restricted Subsidiaries must receive at least their proportionate share of any Dividends paid by such Subsidiary;
(d) so long as no Default or Event of Default exists at such time or would result therefrom (x) the Trust Company may issue its Subordinated Exchange Debentures in exchange for its Senior Preferred Securities Stock in accordance with the terms thereof, (y) the Company may issue its Subordinated Exchange Debentures in exchange for its Series B Preferred Stock in accordance with the terms thereof and (z) the Company may issue its Subordinated Exchange Debentures in an exchange for its Series C Preferred Stock in accordance with the terms thereof, provided that in each such case, the Company shall have determined, with respect to such issuance, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
(e) the Company may exchange shares of its common stock in replacement for shares of outstanding Preferred Stock;
(f) the Company may issue Permitted Replacement Preferred Stock so long as either (x) such stock is issued in exchange for or (y) all of the proceeds from such issuance are used to redeem or repurchase, shares of outstanding Preferred Stock;
(g) the Company may redeem or repurchase shares of its common stock from management investors; provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not to exceed the sum of (i) $9,000,000 5,000,000 in any fiscal yearyear or $15,000,000 in the aggregate after the Original Effective Date and (ii) the amount of cash proceeds received by the Company in respect of the issuance of common equity to management investors on or after the Original Effective Date;
(h) the Company and its Subsidiaries may enter into transactions permitted under Section 8.05(g);
(i) the Company and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may redeem or repurchase shares of its Preferred Stock at a price equal to the liquidation preference thereof plus accrued but unpaid dividends thereon and any applicable premium with respect thereto in exchange for, or with the proceeds of, Additional Preferred Stock and/or Indebtedness incurred under Sections 8.04(h) and/or 8.04(j) (it being understood and agreed that such redemption and/or repurchase need not occur contemporaneously with the issuance of such Additional Preferred Stock or Indebtedness);
(k) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may declare and pay cash Dividends to the holders of its common stock (including, without limitation, repurchases of shares of its common stock), provided that (x) the aggregate amount of cash Dividends paid pursuant to this clause (k) during any fiscal year of the Company does not exceed $25,000,000 and (y) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement; and
(l) the Company may pay additional cash Dividends to the holders of its common stock so long as (x) no Default or Event of Default exists at such time or would result therefrom, (y) the Leverage Ratio at such time is less than 4.00:1.00 and (z) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Tsecrp Inc)
Dividends, Etc. The Borrower will notDeclare or pay any dividends, and will not purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent persons thereof) as such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or the equivalent persons thereof) as such or issue or sell any Equity Interests or accept any capital contributions or permit any of its Subsidiaries tosubsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any Equity Interests in the Issuer or to issue or sell any Equity Interests therein, except that the Issuer may (i) declare and make any dividend payment or pay any dividends (other than dividends distribution payable solely in common stock of the Borrower Issuer, (ii) issue Equity Interests upon the exercise or any conversion of stock options, warrants or convertible securities of the Issuer that exist as of the date hereof, (iii) issue stock options that are authorised under the Issuer's employee stock option plan as in effect on the date hereof to directors, officers and employees of the Issuer to acquire common stock of the Issuer; provided, however, that the common stock that would be issued upon the exercise of all options under such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any stock option plan shall not exceed 3,600,000 shares of any class the common stock of its capital the Issuer (calculated as though all such options were issued on the date hereof) after giving effect to such exercise, and (iv) issue common stock to effect stock-for-stock acquisitions, now or hereafter outstanding provided, however, the aggregate amount of common stock issued pursuant to this clause (or any warrants for or options or iv) shall not exceed 25% of the total common stock appreciation rights of the Issuer after giving effect to such issuance, and provided, in respect of any each of such sharesclauses (i), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"ii), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares (iv) of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, providedthis subsection (e), that, immediately after giving effect to any such proposed action, no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.
Appears in 1 contract
Dividends, Etc. The Borrower Holdings will not, and will not permit any --------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing fore going "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockTransaction shall be permitted;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiia) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment, provided that (w) the only consideration paid by -------- Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $2,000,000 in any fiscal year of Holdings, provided that such amount shall -------- be increased by an amount equal to the proceeds received by Holdings after March 27, 1999 the Effective Date from the sale or issuance of Holdings Common Stock to management of Holdings or any of its Subsidiaries and computed on a cumulative consolidated basis, provided, that, immediately after giving effect (y) at the time of any cash payment permitted to such proposed actionbe made pursuant to this Section 8.06(iii), no Default or Event of Default shall then exist or result therefrom; and (b) so long as no Default or Event of Default then exists or would existresult therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (iii)(a) of this Section 8.06;
(iv) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings to (x) pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses or (y) pay salaries or other compensation of employees who perform services for Holdings and the Borrower;
(v) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided -------- that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay federal income taxes at any time shall not exceed the lesser of (A) the amount of such federal income taxes owing by Holdings at such time for the respective period and (B) the amount of such federal income taxes that would be owing by the Borrower and its Subsidiaries on a consolidated basis for such period if determined without regard to Holdings' ownership of the Borrower and (y) any refunds shall promptly be returned by Holdings to the Borrower;
(vi) Holdings may pay regularly scheduled Dividends on the Permitted Holdings PIK Securities (to the extent issued as preferred stock) pursuant to the terms thereof solely through the issuance of additional shares of such Permitted Holdings PIK Securities, provided that in lieu of issuing -------- additional shares of such Permitted Holdings PIK Securities as Dividends, Holdings may increase the liquidation preference of the shares of Permitted Holdings PIK Securities in respect of which such Dividends have accrued; and
(iva) Vanstar Financing Trust Holdings may declare and pay regularly accruing cash dividends on the Trust Preferred Securities Dividends in accordance with the terms thereof addition to those permitted above in this Section 8.06 in an amount not to exceed $9,000,000 1,000,000 in any fiscal year, plus the Cumulative Income and Equity Amount at the time of the payment of any such Dividend, so long as no Default or Event of Default then exists or would result therefrom, and (b) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as the cash proceeds thereof are promptly used by Holdings for the purpose described in clause (vii)(a) of this Section 8.06.
Appears in 1 contract
Samples: Credit Agreement (Nutraceutical International Corp)
Dividends, Etc. (a) The Borrower Borrowers will not, and will not permit any of its Subsidiaries other Credit Party to, declare or pay any dividends or distributions (other than dividends or distributions payable solely in common capital stock or partnership interests of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or partners or authorize or make any other distribution, payment or delivery of property or cash to its stockholders or partners as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock or partnership interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such sharesshares or partnership interests), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries other Credit Party to purchase or otherwise acquire for consideration any shares of any class of the capital stock or partnership interests of the Borrower or any other Subsidiarya Borrower, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the Borrower Partnership may purchase, redeem or otherwise acquire shares of its common stock or warrants or options pay dividends to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockPartnership;
(ii) any Subsidiary Summxxxxx, Xxc. may pay dividends with the proceeds of the Borrower may pay Dividends to management fees it is paid by the Borrower or any Wholly-Owned Subsidiary of the Borrower;Partnership as permitted by Section 7.10 (viii); and
(iii) if no Event of Default exists, the Borrower Partnership may declare make distributions to the Partners as Tax Allowance Amounts which are paid in cash and made as distributions to all Partners.
(b) The Borrowers will not, and will not permit any other Credit Party to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make other distributions or pay cash dividends any Indebtedness owed to its stockholders and purchasethe Partnership, redeem (b) make loans or otherwise acquire shares advances to the Partnership or (c) transfer any of its properties or assets to the Partnership or (B) the ability of any Credit Party to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations or (C) the ability of any Credit Party to amend any Credit Document, other than prohibitions or restrictions existing under or by reason of (i) this Agreement, the other Credit Documents and the Subordinated Note Documents; (ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) any restriction or encumbrance with respect to a Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or warrants, rights or options to acquire any such shares for cash solely out assets of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.such
Appears in 1 contract
Dividends, Etc. The Borrower No Credit Agreement Party will, nor will not, and will not any Credit Agreement Party permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or other equityholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders or other equityholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stockEquity Interests, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower no Credit Agreement Party will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock Equity Interests of the Borrower such Credit Agreement Party or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stockEquity Interests) (all of the foregoing foregoing, except to the extent (in any such case) paid by such Person to its shareholders with the common stock of such Person, collectively, "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the BorrowerGuarantor;
(iiiii) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock, as the case may be, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment (by death, disability or otherwise), provided that (x) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven plus (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after March 27the Initial Borrowing Date, 1999 shall not exceed $5,000,000, and computed on (z) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 9.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom;
(iii) so long as no Default or Event of Default then exists or would exist; andexist immediately after giving effect thereto, the Borrower may pay cash Dividends to Holdings, so long as the cash proceeds thereof are promptly used by Holdings for the purposes described in clause (ii) of this Section 9.06;
(iv) Vanstar Financing Trust Holdings may declare and pay regularly accruing cash dividends on Dividends with respect to Qualified Preferred Stock through (x) an increase in the Trust aggregate liquidation preference of the shares of Qualified Preferred Securities Stock in respect of which Dividends have accrued (but not in cash) or (y) the issuance of additional shares of Qualified Preferred Stock (but not in cash) in accordance with the terms thereof;
(v) any Subsidiary of the Borrower that is not a Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Interest or Equity Interests in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holdings of Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests in such Subsidiary or the terms of any agreements applicable thereto);
(vi) the Borrower may pay cash Dividends to Holdings, so long as the proceeds thereof are promptly used by Holdings to pay operating expenses incurred by it in the ordinary course of business that are not prohibited by the terms of this Agreement or any other Credit Document;
(vii) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided that (x) the amount of cash Dividends paid pursuant to this clause (vii) to enable Holdings to pay Federal and state income taxes at any time shall not exceed the amount of such Federal and state income taxes actually owing by Holdings at such time for the respective period and (y) any refunds received by Holdings shall promptly be returned by Holdings to the Borrower;
(viii) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of paying (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to pay) cash interest and principal as and when due on Shareholder Subordinated Notes then outstanding to the extent the respective payment is expressly permitted pursuant to the proviso to clause (ii) of Section 9.06, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (viii) shall not exceed the amounts expressly permitted to be paid pursuant to the proviso to clause (ii) of Section 9.06 and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(ix) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of paying (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to pay) cash interest and principal as and when due on Permitted Subordinated Indebtedness then outstanding, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (ix) shall not exceed the amounts necessary to pay the cash interest and principal owing with respect to Permitted Subordinated Indebtedness, as the case may be, and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(x) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of paying (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to pay) regularly scheduled cash interest as and when due on the Existing 2006 Floating Rate Senior Subordinated Notes then outstanding and/or principal of the Existing 2006 Floating Rate Senior Subordinated Notes upon the final stated maturity thereof, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (x) shall not exceed the amounts necessary to pay the cash interest and/or principal owing with respect to the Existing 2006 Floating Rate Senior Subordinated Notes and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(xi) the Borrower may pay cash Dividends to Holdings, which in turn shall utilize the full amount of such cash Dividends for the purpose of repurchasing or redeeming (and so long as Holdings, by the second succeeding Business Day, utilizes the full amount of such cash Dividends to repurchase or redeem) Existing 2006 Floating Rate Senior Subordinated Notes to the extent the respective repurchase or redemption is expressly permitted pursuant to clause (u) of the proviso to clause (ii) of Section 9.12, provided that (x) the amount of cash Dividends payable by the Borrower pursuant to this clause (xi) shall not exceed the amounts expressly permitted to be paid pursuant to clause (u) of the proviso to clause (ii) of Section 9.12 and (y) no such Dividend shall be paid at any time following the occurrence and during the continuance of any Default or Event of Default or if a Default or Event of Default would exist immediately after giving effect to the payment of such Dividend;
(xii) the Borrower may pay cash Dividends to Holdings on the Redemption Date, which in turn shall immediately utilize the full amount of such cash Dividends on such date to pay accrued interest, principal and related call premiums of or on the Existing 2006 10% Senior Subordinated Notes and the Existing Junior PIK Notes pursuant to the Existing Senior Notes Refinancing (it being understood that this Section 9.06(xii) shall be alternative to, but duplicative of, the Borrower's right to make intercompany loans to Holdings for the purposes described above pursuant to Section 9.05(q)(i));
(xiii) Holdings may from time to time repurchase outstanding shares of Holdings Common Stock with cash and/or pay cash Dividends on Holdings Common Stock, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) calculations are made by Holdings of compliance with an amount Adjusted Total Leverage Ratio not to exceed 3.00:1.0, determined on a Pro Forma Basis after giving effect to the payment of respective Dividend and the incurrence of any Indebtedness to finance the same (as if such Dividend had been consummated and such Indebtedness had been incurred, in each case on the first day of the respective Calculation Period), (x) the aggregate amount of cash expended to make or pay Dividends pursuant to this clause (xiii) after the Initial Borrowing Date shall not exceed $9,000,000 10,000,000 (or, if the Adjusted Total Leverage Ratio determined (and demonstrated) pursuant to preceding clause (w) at the time of payment of the respective Dividend does not exceed 2.50:1.00, $20,000,000), (y) after giving effect to the payment of the respective Dividend and the incurrence of any Revolving Loans and Swingline Loans utilized to finance the same, the Total Unutilized Revolving Loan Commitment shall equal or exceed $10.0 million, and (z) Holdings shall have furnished to the Administrative Agent a certificate from an Authorized Officer of Holdings certifying to the best of his or her knowledge as to compliance with the requirements of this Section 9.06(xiii) and, if applicable, containing the calculations required by the preceding clauses (w), (x) and (y);
(xiv) Holdings may from time to time repurchase outstanding shares of Holdings Common Stock with cash and/or pay cash Dividends on Holdings Common Stock, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) calculations are made by Holdings of compliance with an Adjusted Total Leverage Ratio not to exceed 2.50:1.0, determined on a Pro Forma Basis after giving effect to the payment of respective Dividend and the incurrence of any Indebtedness to finance the same (as if such Dividend had been consummated and such Indebtedness had been incurred, in each case on the first day of the respective Calculation Period), (x) the aggregate amount of cash expended to make or pay Dividends pursuant to this clause (xiv) shall not exceed the Excess Proceeds Amount then in effect, (y) after giving effect to the payment of the respective Dividend and the incurrence of any fiscal yearRevolving Loans and Swingline Loans utilized to finance the same, the Total Unutilized Revolving Loan Commitment shall equal or exceed $10.0 million, and (z) Holdings shall have furnished to the Administrative Agent a certificate from an Authorized Officer of Holdings certifying to the best of his or her knowledge as to compliance with the requirements of this Section 9.06(xiv) and, if applicable, containing the calculations required by the preceding clauses (w), (x) and (y);
(xv) Holdings may from time to time pay cash Dividends on its outstanding shares of Holdings Common Stock in lieu of the issuance of fractional shares of Holdings Common Stock upon the exercise of warrants or upon the conversion or exchange of, or the issuance of Holdings Common Stock in lieu of cash Dividends on, Holdings Common Stock, so long as (x) no Default or Event of Default then exists or would result therefrom, and (y) the aggregate amount of cash expended to pay Dividends pursuant to this clause (xv) shall not exceed $25,000; and
(xvi) so long as no Default or Event of Default then exists or would exist immediately after giving effect thereto, the Borrower may pay cash dividends to Holdings for the purpose of permitting Holdings to effect the Dividends described in Sections 9.06(xiii), (xiv) and (xv) above, so long as the cash proceeds thereof are promptly used by Holdings to effect Dividends in accordance with the requirements of said Section 9.06(xiii), (xiv) or (xv), as the case may be (it being understood that this Section 9.06(xvi) shall be alternative to, but duplicative of, the Borrower's right to make intercompany loans to Holdings for the purposes described above pursuant to Section 9.05(q)(ii)).
Appears in 1 contract
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiaryof its Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) that any Subsidiary of the Borrower may pay Dividends cash dividends to its parent if such parent is the Borrower or any a Wholly-Owned Subsidiary of the Borrower;.
(iiib) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (i) the Borrower may declare ability of any Subsidiary to (A) pay dividends or make other distributions or pay cash dividends any Indebtedness owed to its stockholders and purchase, redeem the Borrower or otherwise acquire shares any of its capital stock Subsidiaries, as applicable, (B) make loans or warrantsadvances to the Borrower or any Subsidiary, rights as applicable, (C) transfer any of its properties or options assets to acquire the Borrower or any such shares for cash solely out of 25% of Net Income Subsidiary, as applicable, or (D) guarantee the Obligations or (ii) the ability of the Borrower or any Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (I) this Agreement and its Subsidiaries arising after March 27, 1999 the other Credit Documents and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.II)
Appears in 1 contract
Samples: Credit Agreement (Ceres Group Inc)
Dividends, Etc. The Except for the Distributions, the Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for any consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or make any loans or advances to Affiliates, or set -66- aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiaryof the Borrower's Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing foregoing, together with the optional redemption or repurchase of the Senior Notes in accordance with the terms of the Indenture, "Dividends"), unless (1) immediately before and immediately after giving effect to such proposed Dividends on a pro forma basis, no Default or Event of Default shall have occurred and be continuing and such Dividend shall not be an event which is, or after notice or lapse of time would be, an "event of default" under the terms of any Indebtedness of the Borrower or its Subsidiaries and (2) after giving effect to the proposed Dividend, the aggregate amount of all such Dividends declared or made since the Closing Date, does not exceed 50% of the aggregate Consolidated Net Income of the Borrower accrued on a cumulative basis during the period beginning on the first day of the fiscal quarter beginning after the Closing Date and ending on the last day of the Borrower's last fiscal quarter ending prior to the date of the Dividend, provided that the aggregate amount of such Dividends shall not exceed $5.0 million in any twelve-month period; and except that:
that (i) any Subsidiary of the Borrower may purchase, redeem or otherwise acquire shares of pay Dividends to its common stock or warrants or options to acquire any parent corporation if such shares with the proceeds received by parent corporation is the Borrower from or a Wholly-Owned Subsidiary of the substantially concurrent issue of new shares of its common stock;
Borrower, and (ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary amounts required for the payment of the Borrower;
any taxes payable (iiix) by the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of (y) by the Borrower and and/or its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated consolidated, combined or unitary basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; and
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in any fiscal year.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "“Dividends"”), except that:
(ia) the Borrower may purchase, redeem or otherwise acquire pay regularly accruing dividends on each issuance of Preferred Stock through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with the proceeds received by Preferred Stock, provided that the Borrower from the substantially concurrent issue may pay such regularly accruing dividends on its Preferred Stock in cash so long as no Default or Event of new shares of its common stockDefault exists at such time or would result therefrom;
(iib) any Subsidiary of the Borrower may pay Dividends to the Borrower or to any Wholly-Owned Restricted Subsidiary of the Borrower;
(iiic) the Borrower any Partially-Owned Restricted Subsidiary may declare or pay cash dividends Dividends to its stockholders and purchasestockholders, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of provided that the Borrower and its Restricted Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to must receive at least their proportionate share of any Dividends paid by such proposed action, Subsidiary;
(d) so long as no Default or Event of Default exists at such time or would exist; and
result therefrom the Borrower may issue its Subordinated Exchange Debentures in exchange for its Series D Preferred Stock in accordance with the terms thereof, (ivy) Vanstar Financing Trust the Borrower may declare and pay regularly accruing cash dividends on the Trust issue its Subordinated Exchange Debentures in exchange for its Series F Preferred Securities Stock in accordance with the terms thereof and (z) the Borrower may issue its Subordinated Exchange Debentures in an exchange for its Series H Preferred Stock in accordance with the terms thereof, provided that in each such case, the Borrower shall have determined, with respect to such issuance, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
(e) the Borrower may exchange shares of its common stock in replacement for shares of outstanding Preferred Stock;
(f) the Borrower may issue Permitted Replacement Preferred Stock so long as either (x) such stock is issued in exchange for or (y) all of the proceeds from such issuance are used to redeem or repurchase, shares of outstanding Preferred Stock;
(g) the Borrower may redeem or repurchase shares of its common stock from management investors; provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not to exceed the sum of (i) $9,000,000 10,000,000 in any fiscal yearyear or $25,000,000 in the aggregate after the Effective Date and (ii) the amount of cash proceeds received by the Borrower in respect of the issuance of common equity to management investors on or after the Effective Date;
(h) the Borrower and its Subsidiaries may enter into transactions permitted under Section 8.05(g);
(i) the Borrower and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may redeem or repurchase shares of its Preferred Stock at a price equal to the liquidation preference thereof plus accrued but unpaid dividends thereon and any applicable premium with respect thereto in exchange for, or with the proceeds of, Additional Preferred Stock and/or Indebtedness incurred under Sections 8.04(h) and/or 8.04(j) or, in the case of any redemption of Series H Preferred Stock, the proceeds of Loans incurred hereunder (it being understood and agreed that any such redemption and/or repurchase, consummated pursuant to this clause (j), need not occur contemporaneously with the issuance of such Additional Preferred Stock or Indebtedness);
(k) so long as no Default or Event of Default exists at such time or would result therefrom, the Borrower may declare and pay cash Dividends to the holders of its common stock (including, without limitation, repurchases of shares of its common stock), provided that (x) the aggregate amount of cash Dividends paid pursuant to this clause (k) during any fiscal year of the Borrower does not exceed $75,000,000 and (y) the Borrower shall have determined, in connection with such Dividend, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement; and
(l) the Borrower may pay additional cash Dividends to the holders of its common stock so long as (x) no Default or Event of Default exists at such time or would result therefrom, (y) the Leverage Ratio at such time is less than 4.00:1.00 and (z) the Borrower shall have determined, in connection with such Dividend, that the Borrower and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Primedia Inc)
Dividends, Etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or so long as any such Dividends paid by any non-Wholly-Owned Subsidiary of the BorrowerBorrower are paid on a pro rata basis to such Subsidiary's shareholders generally;
(iiiii) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27following the termination of their employment, 1999 provided that (x) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash and computed on Shareholder Subordinated Notes and (y) at the time of any cash payment permitted to be made pursuant to this Section 8.06(ii), including any cash payment under a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed actionShareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom;
(iii) so long as no Default or Event of Default then exists or would existresult therefrom, the Borrower may pay cash Dividends to Holdings provided that Holdings promptly uses such cash Dividends for the purposes described in clause (ii) of this Section 8.06;
(iv) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such cash Dividends to pay operating expenses in the ordinary course of business and other similar corporate overhead costs and expenses;
(v) Holdings may pay regularly scheduled Dividends on the Seller Preferred Stock pursuant to the terms thereof through the issuance of additional shares of Seller Preferred Stock, provided that in lieu of issuing additional shares of Seller Preferred Stock as dividends, Holdings may increase the liquidation preference of the shares of the Seller Preferred Stock in respect of which such dividends have accrued;
(vi) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly thereafter uses such cash proceeds to repurchase outstanding shares of Seller Preferred Stock;
(vii) the Borrower may pay cash Dividends to Holdings, provided that Holdings promptly thereafter uses such cash proceeds to repurchase Holdings Common Stock so long as (x) no Default or Event of Default then exists or would result therefrom and (y) the aggregate amount of cash Dividends paid pursuant to this clause (vii) shall not exceed the cash proceeds (net of all underwriting discounts, fees and commissions and other costs and expenses associated therewith) actually received by Holdings from the exercise by management of Holdings and its Subsidiaries of options to purchase Holdings Common Stock; and
(ivviii) Vanstar Financing Trust the Borrower may declare pay cash Dividends to Holdings, provided that Holdings promptly thereafter uses such cash proceeds to pay cash Dividends to the holders of its capital stock so long as (x) no Default or Event of Default then exists or would result therefrom and pay regularly accruing (y) the aggregate amount of cash dividends on Dividends paid after the Trust Preferred Securities in accordance with Original Effective Date pursuant to this clause (viii) shall not exceed the terms thereof in an amount not to exceed sum of (1) $9,000,000 in any fiscal year6,000,000 plus (if positive) (2) 50% of Cumulative Consolidated Net Income.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other Subsidiaryof its Subsidiaries, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Any Subsidiary of the Borrower may pay Dividends cash dividends to its parent if such parent is the Borrower or any a Wholly-Owned Subsidiary of the Borrower;
(iiiii) the The Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of purchase its capital stock at any time so long as no Default or warrants, rights Event of Default exists at such time or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, would exist immediately after giving effect to such proposed actionredemption or purchase; and
(iii) The Borrower may pay cash dividends on its capital stock in any fiscal quarter, provided that the aggregate amount of dividends paid in any fiscal quarter shall not exceed an amount equal to the greater of (A) $0.26 multiplied by the number of shares of the Borrower's common stock outstanding as of the record date declared by the Borrower's Board of Directors for such fiscal quarter; provided that to the extent there is more than one record date for such fiscal quarter, the first record date for such fiscal quarter shall be used in determining the numbers of shares of the Borrower's common stock outstanding for such period and (B) an amount, if positive, equal to 50% of the Borrower's Consolidated Net Income for the four most recently completed consecutive fiscal quarters of the Borrower ending on the last day of such fiscal quarter (taken as one accounting period) divided by four; provided that no dividends may be paid pursuant to this Section 8.06(a)(iii) if any Default or Event of Default exists at the time of the payment of such cash dividends or would exist; andexist immediately after giving effect thereto.
(ivb) Vanstar Financing Trust may declare The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (i) the ability of any Subsidiary to (A) pay regularly accruing cash dividends on or make other distributions or pay any Indebtedness owed to the Trust Preferred Securities in accordance with Borrower or any of its Subsidiaries, as applicable, (B) make loans or advances to the terms thereof in an amount not Borrower or any Subsidiary, as applicable, (C) transfer any of its properties or assets to exceed $9,000,000 in the Borrower or any fiscal yearSubsidiary, as applicable, or (D) guarantee the Obligations or (ii) the ability of the Borrower or any Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (I) this Agreement and the other Credit Documents, (II) the Chartwell Senior Notes, (III) the Trenwick Senior Notes and (IV) Legal Requirements.
Appears in 1 contract
Dividends, Etc. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Company will not permit any of its Restricted Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Company or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(ia) the Borrower Company may purchase, redeem or otherwise acquire pay regularly accruing dividends on each issuance of Preferred Stock through the issuance of additional shares of its common stock or warrants or options to acquire any such shares with Preferred Stock, provided that the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower Company may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay such regularly accruing dividends on its Preferred Stock in cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as no Default or Event of Default exists at such time or would exist; andresult therefrom;
(ivb) Vanstar Financing Trust any Subsidiary of the Company may declare pay Dividends to the Company or to any Wholly-Owned Restricted Subsidiary of the Company;
(c) any Partially-Owned Restricted Subsidiary may pay cash Dividends to its stockholders, provided that the Company and pay regularly accruing cash dividends on its Restricted Subsidiaries must receive at least their proportionate share of any Dividends paid by such Subsidiary;
(d) so long as no Default or Event of Default exists at such time or would result therefrom (x) the Trust Company may issue its Subordinated Exchange Debentures in exchange for its Senior Preferred Securities Stock in accordance with the terms thereof, (y) the Company may issue its Subordinated Exchange Debentures in exchange for its Series B Preferred Stock in accordance with the terms thereof and (z) the Company may issue its Subordinated Exchange Debentures in an exchange for its Series C Preferred Stock in accordance with the terms thereof, provided that in each such case, the Company shall have determined, with respect to such issuance, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 7.09, 7.10 and 7.11 of this Agreement;
(e) the Company may exchange shares of its common stock in replacement for shares of outstanding Preferred Stock;
(f) the Company may issue Permitted Replacement Preferred Stock so long as either (x) such stock is issued in exchange for or (y) all of the proceeds from such issuance are used to redeem or repurchase, shares of outstanding Preferred Stock;
(g) the Company may redeem or repurchase shares of its common stock from management investors; provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares and equity interests so redeemed or repurchased does not to exceed the sum of (i) $9,000,000 5,000,000 in any fiscal yearyear or $15,000,000 in the aggregate after the Effective Date and (ii) the amount of cash proceeds received by the Company in respect of the issuance of common equity to management investors on or after the Effective Date;
(h) the Company and its Subsidiaries may enter into transactions permitted under Section 7.05(g);
(i) the Company and its Restricted Subsidiaries may acquire the capital stock of Unrestricted Subsidiaries in accordance with the provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may redeem or repurchase shares of its Preferred Stock at a price equal to the liquidation preference thereof plus accrued but unpaid dividends thereon and any applicable premium with respect thereto in exchange for, or with the proceeds of, Additional Preferred Stock and/or Indebtedness incurred under Sections 7.04(h) and/or 7.04(j) (it being understood and agreed that such redemption and/or repurchase need not occur contemporaneously with the issuance of such Additional Preferred Stock or Indebtedness);
(k) so long as no Default or Event of Default exists at such time or would result therefrom, the Company may declare and pay cash Dividends to the holders of its common stock (including, without limitation, repurchases of shares of its common stock), provided that (x) the aggregate amount of cash Dividends paid pursuant to this clause (k) during any fiscal year of the Company does not exceed $25,000,000 and (y) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 7.09, 7.10 and 7.11 of this Agreement; and
(l) the Company may pay additional cash Dividends to the holders of its common stock so long as (x) no Default or Event of Default exists at such time or would result therefrom, (y) the Leverage Ratio at such time is less than 4.00:1.00 and (z) the Company shall have determined, in connection with such Dividend, that the Company and its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis, with Sections 7.09, 7.10 and 7.11 of this Agreement.
Appears in 1 contract
Dividends, Etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for considerationdeclare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of equity interests of the Borrower or any Subsidiary, or purchase, redeem or otherwise acquire for value (or permit any of its capital stockSubsidiaries to do so) any shares of any class of equity interests of the Borrower or any Subsidiary or any warrants, rights or options to acquire any such shares, now or hereafter outstanding (such declarations, payments, other distributions, purchases, redemptions, or other acquisitions being herein called "Restricted Payments"), except that (i) any warrants for wholly owned Subsidiary may declare and pay dividends to the Borrower, or options or stock appreciation rights in respect the case of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or Subsidiary that is wholly owned by any other Subsidiary, as the case to such Subsidiary, (ii) NUI/Caritrade International may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect declare and pay ratable dividends to its capital stock) shareholders provided that it is a Subsidiary hereunder at the time of such ratable dividend, and (all of the foregoing "Dividends"), except that:
(iiii) the Borrower may (a) declare and make any dividend payment or other distribution payable solely in common equity interests of the Borrower, and (b) purchase, redeem or otherwise acquire shares of its common stock equity interests or warrants warrants, rights or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
equity interests and (iic) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire shares of its capital stock equity interests or warrants, rights or options to acquire for consideration of any such shares for cash solely out shares, so long as the aggregate of 25% of Net Income such Restricted Payments made, paid or declared would not exceed $20,000,000; provided, that (x) in the case of the Borrower Restricted Payments under clauses (ii) and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that(iii) above, immediately after giving effect to such proposed actionRestricted Payments, no Potential Default or Event of Default would exist; and
exist and (ivy) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on in the Trust Preferred Securities in accordance with the terms thereof in an amount not to exceed $9,000,000 in case of all Restricted Payments, no such payment shall violate any fiscal yearGovernmental Rule.
Appears in 1 contract
Samples: Credit Agreement (Nui Corp /Nj/)
Dividends, Etc. The Borrower Holdings will not, and will not permit any of --------------- its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower Holdings or any such Subsidiary, as the case may be) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower Holdings will not permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockTransaction shall be permitted;
(ii) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(iiia) the Borrower Holdings may declare or pay cash dividends to its stockholders and purchase, redeem or otherwise acquire purchase shares of its capital stock or warrants, rights Holdings Common Stock or options to acquire purchase Holdings Common Stock, held by former employees of Holdings or any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising following the termination of their employment, provided that (w) the only consideration paid by -------- Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $2,000,000 in any fiscal year of Holdings, provided that such amount -------- shall be increased by an amount equal to the proceeds received by Holdings after March 27, 1999 the Original Effective Date from the sale or issuance of Holdings Common Stock to management of Holdings or any of its Subsidiaries and computed on a cumulative consolidated basis, provided, that, immediately after giving effect (y) at the time of any cash payment permitted to such proposed actionbe made pursuant to this Section 8.06(iii), no Default or Event of Default shall then exist or result therefrom; and (b) so long as no Default or Event of Default then exists or would exist; andresult therefrom, the Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for the purposes described in clause (iii)(a) of this Section 8.06;
(iva) Vanstar Financing Trust Holdings may declare redeem or purchase shares of Holdings Common Stock or options to purchase Holdings Common Stock held by the two individuals holding the offices of Chairman and pay regularly accruing cash dividends on Chief Financial Officer of the Trust Preferred Securities Borrower as of the Restatement Effective Date following the death or disability of such individuals, provided that (x) the aggregate amount paid by Holdings in accordance with respect of all such redemptions and/or purchases for (I) the terms thereof in an amount individual holding the office of Chairman shall not to exceed $9,000,000 10,000,000 and (II) the individual holding the office of Chief Financial Officer does not exceed $2,000,000 and (y) at the time of any payment permitted to be made pursuant to this Section 8.06(iv), no Default or Event of Default shall then exist or result therefrom and (b) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay cash Dividends to Holdings so long as the cash proceeds thereof are promptly used by Holdings for the purposes described in clause (iv)(a) of this Section 8.06;
(v) the Borrower may pay cash Dividends to Holdings so long as the pro ceeds thereof are promptly used by Holdings to (x) pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, provided that the aggregate amount of cash Dividends paid -------- pursuant to this clause (x) shall not during any fiscal year.year of the Borrower exceed $1,000,000 or (y) pay salaries or other compensation of employees who perform services for Holdings and the Borrower, provided -------- that the aggregate amount of cash Dividends paid pursuant to this clause (y) shall not during any fiscal year of the Borrower exceed $250,000;
(vi) the Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of taxes, provided that (x) the amount of cash Dividends paid pursuant to this -------- clause
Appears in 1 contract
Dividends, Etc. The Holdings and the Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the Borrower or any Person paying such Subsidiary, as the case may bedividend) or return any capital to, its stockholders equityholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders equityholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for considerationa consideration (other than consideration in the form of common stock of the Person paying such dividend), any shares of any class of its capital stock, stock or any other of its equity interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such sharesshares or other equity interests), or set aside any funds for any of the foregoing purposes, purposes and Holdings and the Borrower will not permit any of its their respective Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of or other equity interests in Holdings, the Borrower or any other Subsidiary, as the case may be, of their respective Subsidiaries now or hereafter outstanding (or any warrants for or options or warrants stock or stock similar appreciation rights issued by such Person with in respect to its capital stockof any such shares or other equity interests) (all of the foregoing "“Dividends"”), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(iia) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the BorrowerBorrower which owns equity interest therein;
(iiib) Holdings may pay regularly scheduled Dividends on the Permitted Preferred Stock pursuant to the terms thereof solely through the issuance of additional preferred shares of such Permitted Preferred Stock;
(c) the Borrower may declare pay Dividends or make loans to Holdings to enable Holdings to (i) pay cash dividends reasonable and customary corporate and administrative expenses in the ordinary course (including those related to its stockholders Holdings being a public company) and purchase(ii) make payments expressly permitted pursuant to Section 8.7;
(d) so long as the payments relate to a period for which the Borrower is a member of the same consolidated group as Holdings for federal income tax purposes, redeem the Borrower may make payments required pursuant to the Tax Sharing Agreement as in effect on the Effective Date and delivered to the Administrative Agent pursuant to Section 5.1(m) or otherwise acquire shares of its capital stock or warrants, rights as amended pursuant to Section 8.13(iii);
(e) Holdings may repurchase Holdings Common Stock or options to acquire any such shares for cash solely out purchase Holdings Common Stock held by current or former directors, executives, officers, members of 25% management or employees of Net Income of Holdings, the Borrower and its or any of their respective Subsidiaries arising after March 27(or their spouses or estates), 1999 and computed on a cumulative consolidated basis, provided, that, provided that no Default or Event of Default then exists or would exist immediately after giving effect thereto;
(f) the Borrower may pay cash Dividends or make loans to Holdings for the purpose of enabling Holdings (x) to make the purchases referred to in clause (e) above, so long as all proceeds thereof are promptly used by Holdings to make such proposed actionpurchases and (y) to pay fees and expenses related to the Holdings IPO or any other offering of debt or equity securities by Holdings not prohibited by this Credit Agreement; provided that, in each case, no Default or Event of Default then exists or would existexist immediately after giving effect thereto;
(g) non-cash repurchases of capital stock of Holdings which may be deemed to occur upon exercise of stock options if such capital stock represents a portion of the exercise price of such options;
(h) the Borrower may pay cash Dividends or make loans to Holdings for the purpose of enabling Holdings or any Unrestricted Subsidiary to consummate a Permitted Acquisition, provided that (1) the applicable requirements set forth in the definition of “Permitted Acquisition” and in Section 7.17 are satisfied as of the date of the making of such Dividend or loan (as if Section 1.5 were not in effect), (2) the aggregate amount of such cash Dividends and loans by the Borrower to Holdings pursuant to this clause (h) shall not exceed the aggregate amount of proceeds of Revolving Loans permitted under Section 7.17 to be used in connection with Permitted Acquisitions, except that not more than $50,000,000 of the $100,000,000 of proceeds of Revolving Loans permitted to be used in connection with Permitted Acquisitions in any fiscal year of the Borrower under Section 7.17(a)(vi)(A) (less the amount of proceeds of Revolving Loans used by the Borrower or any of its Wholly-Owned Subsidiaries under Section 7.17(a)(vi)(A) in connection with Permitted Acquisitions referred to in clause (y) of the last sentence of Section 7.17(a)) shall be permitted to be dividended or lent by the Borrower to Holdings during such fiscal year of the Borrower, (3) all proceeds thereof are, within 30 days of the making of such Dividend or loan, used by Holdings to make such Permitted Acquisition (and if not so timely used, shall promptly be paid to the Borrower as a common stock contribution), and (4) there exists no Default or Event of Default at the time of such Dividend or loan or after giving effect thereto;
(i) the Borrower may distribute to Holdings the capital stock of any of the Existing Non-Canadian Foreign Subsidiaries; provided that (1) all transfers of assets from the Borrower or any of its Subsidiaries to any such Existing Non-Canadian Foreign Subsidiary during the period commencing on May 16, 2005 and ending on and including the date of such Dividend are made in the ordinary course of business and consistent with historical practices, (2) neither the Borrower nor any Guarantor (other than Holdings) is (or at any time after such Dividend will be) a guarantor of or otherwise liable with respect to any Indebtedness or other obligations of any Existing Non-Canadian Foreign Subsidiary, (3) no assets of the Borrower or any Guarantor (other than in the case of Holdings, the capital stock of the applicable Existing Non-Canadian Foreign Subsidiary) secure (or at any time after such Dividend will secure) any Indebtedness of or other obligations of any of the Existing Non-Canadian Foreign Subsidiaries and (4) no Default or Event of Default exists at the time of such Dividend or will result from such Dividend;
(j) Holdings may make repurchases of options to purchase Holdings Common Stock as disclosed in a writing delivered by the Borrower to the Administrative Agent and the Syndication Agent (and the Borrower may pay cash Dividends or make loans to Holdings for the purpose of enabling Holdings to make such repurchases so long as the proceeds thereof are promptly used by Holdings to make such repurchases), provided that (i) no Default or Event of Default exists at the time of any such Dividend, loan or repurchase or would exist immediately after giving effect thereto and (ii) the aggregate amount of such repurchases does not exceed $5,500,000; and
(ivk) Vanstar Financing Trust the Borrower may declare pay Dividends and pay regularly accruing cash dividends on make loans to Holdings for any other lawful purpose; provided that the Trust Preferred Securities in accordance with aggregate amount of Dividends and loans by the terms thereof in an amount Borrower to Holdings pursuant to clauses (c), (f) and (k) above and of repurchases of capital stock or options by Holdings pursuant to clause (e) above shall not to exceed $9,000,000 10,000,000 in the aggregate in any fiscal year.year of the Borrower; provided further that the Borrower and Holdings may make additional Dividends, loans and repurchases of capital stock or options pursuant to such clauses (c), (e), (f) and (k) so long as (1) the Consolidated Interest Coverage Ratio for the four consecutive fiscal quarter period (taken as one accounting period) of the Borrower most recently ended prior to the date of such Dividend, loan or repurchase, on a pro forma basis as if the Dividend, loan or repurchase had occurred on the first day of such period, is at least 2.00:1.00, (2) (x) Average Excess Availability for the period of 60 consecutive days (or such lesser number of consecutive days as may have elapsed from the Effective Date) ending on (and including) the day on which such Dividend, loan or repurchase is consummated, on a pro forma basis as if the Dividend, loan or repurchase (and any Credit Events to occur in connection therewith) had occurred on the first day of such 60 (or lesser, as the case may be) day period, is greater than $75,000,000 and
Appears in 1 contract
Samples: Credit Agreement (Williams Scotsman International Inc)
Dividends, Etc. The Borrower (a) Holdings will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower or any other SubsidiarySubsidiary (excluding any purchase by any Subsidiary of capital stock of any of its Subsidiaries), as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "“Dividends"”), except that:
(i) the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stock;
(ii) any Subsidiary of the Borrower may pay Dividends to its shareholders;
(ii) Holdings may redeem or repurchase Holdings Common Stock and Series A Preferred (and any options or warrants relating thereto) from any present or former member of management or other key employee upon the death, permanent disability, retirement or termination of employment of any such Person (any such event in respect of a present or former member of management or a key employee, a “Repurchase Triggering Event”), provided that (x) no Default under Section 9.1 or Event of Default is then in existence or would arise therefrom, (y) the aggregate amount of all cash paid in respect of such shares so redeemed or repurchased from all such Persons (other than pursuant to the Pike Holdings 2004 Employee Stock Purchase Plan) shall not exceed $1,000,000 in any fiscal year of Holdings or $5,000,000 in the aggregate after the Original Borrowing Date and (z) the aggregate amount of all cash paid in respect of such shares so redeemed or repurchased in accordance with the Pike Holdings 2004 Employee Stock Purchase Plan shall not exceed $1,500,000 in the aggregate after the Effective Date and; provided further that in the event that Holdings subsequently resells to any member of its, the Borrower’s or any Subsidiary’s management, to any key employee or to a party acceptable to the Administrative Agent (provided that any such party shall simultaneously transfer all such shares purchased by it to a member of management of Holdings, the Borrower or such Subsidiary or a key employee, or for the benefit of one or more members of management or key employees (to the extent that such shares are, simultaneously with such transfer, reserved for issuance to such members of management or such key employees pursuant to an employee incentive plan)) any Wholly-Owned Subsidiary shares redeemed or repurchased pursuant to this clause (ii), the amount of repurchases Holdings may make pursuant to this clause (ii) shall be increased by an amount equal to any cash received by Holdings upon the Borrowerresale of such shares or upon the issuance of shares to members of management or other key employees;
(iii) the Borrower may declare or pay cash dividends Dividends to its stockholders Holdings at such times and purchasein such amounts as are necessary to enable Holdings to (A) make required tax payments, redeem or otherwise acquire shares (B) pay normal operating expenses incurred in the ordinary course of its capital stock or warrantsbusiness, rights or options (C) effect the payments permitted pursuant to acquire Sections 8.9(a)(ii) and 8.10, and/or (D) use the proceeds of Borrowings made on the Effective Date for any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising purposes permitted by Section 6.5, provided that in the event that Holdings has not utilized the proceeds of such Dividend for the purposes for which such dividend was paid within 30 days after March 27the receipt of proceeds of such Dividend, 1999 and computed on Holdings shall be required to immediately utilize the proceeds of such Dividend to make a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; andcapital contribution in the Borrower;
(iv) Vanstar Financing Trust may declare and pay regularly accruing cash dividends on the Trust Preferred Securities Holdings may, in accordance with the terms thereof of the Series A Preferred and if no Event of Default shall have occurred and then be continuing, repurchase shares of the Series A Preferred transferred in violation of the transfer restrictions applicable to such shares set forth in Section 10(c) of the Certificate of Designations for the Series A Preferred, provided that (x) no such repurchase shall be for an amount in excess of the sum of (A) the Available Amount plus (B) the unused amount permitted by Section 8.6(o), in each case, at the time of such repurchase and (y) the aggregate amount expended subsequent to the Original Borrowing Date in connection with all such repurchases shall not exceed $5,000,000;
(v) Holdings may effect adjustments to the adjusted base value of (a) the Series A Preferred in accordance with the terms of the Series A Preferred and (b) the Additional Permitted Preferred in accordance with the terms of the Additional Permitted Preferred;
(vi) Holdings may (A) so long as the Leverage Ratio is then less than or equal to 2.75 to 1.00, redeem or repurchase Holdings Common Stock held by LGB and its Affiliates in exchange for the issuance by Holdings of preferred stock of Holdings having terms not less favorable to the Lenders than the terms of the Series A Preferred, provided that the inclusion in such preferred stock of (x) a higher dividend rate than that included in the Series A Preferred or (y) voting rights different from those granted to the Series A Preferred shall be deemed not to be less favorable to the Lenders, and (B) redeem or repurchase Series A Preferred pursuant to the conversion of Series A Preferred into Holdings Common Stock in accordance with the terms of the Series A Preferred; and
(vii) in addition to the Series A Preferred repurchased pursuant to Sections 8.9(a)(ii) and (iv), Holdings may at any time, in accordance with the terms of the Series A Preferred and if no Event of Default shall have occurred and then be continuing, repurchase shares of the Series A Preferred in an aggregate amount expended subsequent to the Effective Date not exceeding the sum of (x) $5,000,000 and (y) the aggregate amount of Equity Contributions not previously utilized pursuant to exceed $9,000,000 clauses (y)(1), (y)(2) and (y)(3) of the definition of “Available Amount” prior to the date of such repurchase.
(b) Holdings will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any other Subsidiary to (a) pay Dividends or make other distributions or pay any Indebtedness owed to the Borrower or any other Subsidiary, (b) make loans or advances to the Borrower or any other Subsidiary or (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (B) the ability of the Borrower or any other Subsidiary of Holdings to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of:
(i) this Agreement and the other Credit Documents;
(ii) applicable law;
(iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices;
(iv) any fiscal yearrestriction or encumbrance with respect to a Subsidiary of the Borrower imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement;
(v) any restriction or encumbrance with respect to any assets of the Borrower or any of its Subsidiaries imposed pursuant to an agreement which has been entered into for the sale or disposition of such assets, provided that such sale or disposition is permitted under this Agreement and such restriction or encumbrance shall only be effective against the assets to be sold or disposed of;
(vi) Liens permitted under Section 8.3 and any documents or instruments governing the terms of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens; and
(vii) restrictions on the ability of the Borrower to create Liens on investment assets acquired by the Borrower with amounts constituting deferred compensation owing to current and former employees pursuant to the Deferred Compensation Plan or any Deferred Compensation Agreement (or amounts equal to the earnings or gains on such investment assets).
Appears in 1 contract
Dividends, Etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders stockholders, members and/or other owners or authorize or make any other distribution, payment or delivery of property or cash to its stockholders stockholders, members and/or other owners as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock or other ownership interests now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock or other ownership interests of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary may pay dividends or return capital or make distributions and other similar payments with regard to its capital stock or other membership interests to the Borrower may purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockanother Subsidiary;
(ii) any 90%-Owned Subsidiary of the Borrower may pay cash Dividends to the holders of its capital stock, so long as the Borrower or any Whollyits respective Subsidiary which owns the capital stock in the 90% Owned-Owned Subsidiary of the Borrowerpaying such Dividends receives at least its pro rata share thereof;
(iii) the Borrower may declare or pay cash dividends to its stockholders and purchaseduring Phase II, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash solely out of 25% of Net Income of the Borrower and its Subsidiaries arising after March 27, 1999 and computed on a cumulative consolidated basis, provided, that, immediately after giving effect to such proposed action, so long as (a) no Default or Event of Default then exists or would existresult therefrom and (b) the Leverage Ratio on the date of payment thereof (calculated on a pro forma basis after giving effect to the incurrence of any Credit Event on such date) is less than 3.50:1.00, the Borrower may pay Dividends in an amount not to exceed 50% of the Borrower's Excess Cash Flow for the immediately preceding four fiscal quarters prior to the payment of such Dividends pursuant to this Section 9.09(a)(iii); and
(iv) Vanstar Financing Trust the Borrower may declare redeem or repurchase its stock (or options, warrants and/or appreciation rights in respect thereof) from shareholders, officers, employees, consultants and pay regularly accruing cash dividends on directors (or their estates) upon the Trust Preferred Securities death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with any shareholder agreement, stock option plan or any employee stock ownership plan provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares, options, warrants and rights so redeemed or repurchased in any calendar year, does not exceed $1,000,000.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist (other than as a result of a requirement of law) any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (B) the ability of any Subsidiary to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; (ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) any restriction or encumbrance with respect to a Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; (v) Liens permitted under Sections 9.03(d), (m) and/or (n) and any documents or instruments governing the terms thereof of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens and (vi) any agreement or instrument governing Permitted Acquired Debt, to the extent such restriction or encumbrance (x) is not applicable to any Person or the properties or assets of any Person (other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition) and (y) was not created (or made more restrictive) in an amount not to exceed $9,000,000 connection with or in any fiscal yearanticipation of the respective Permitted Acquisition.
Appears in 1 contract
Dividends, Etc. The Borrower MMI Holdings will not, and will not permit any -------------- of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in common stock of the any such Borrower or any such Subsidiary, as the case may be) ), or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property property, capital stock, warrants, rights, options, obligations, securities or cash to its stockholders as such, or redeem, retire, purchase purchase, defease or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower MMI Holdings will not permit any of its Subsidiaries to purchase purchase, redeem, retire, defease or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower MMI Holdings or any such other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that, so long as no Default shall have occurred and be continuing at the time of any action described in clauses (i) through (v) below or would result therefrom:
(i) the Borrower may MMI may, following December 31, 1998, declare and pay cash Dividends to its stockholders and purchase, redeem redeem, retire, defease or otherwise acquire shares of its common own outstanding capital stock or warrants or options to acquire any such shares for cash solely out of 25% Consolidated Net Income of MMI arising after December 31, 1998 and computed on a cumulative, unconsolidated basis in accordance with the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockGAAP;
(ii) any Subsidiary of the any Borrower may pay Dividends to the such Borrower or any Wholly-Owned Subsidiary of the such Borrower;
(iii) the Borrower MMI Holdings may declare or pay cash dividends to its stockholders and purchase, redeem redeem, defease or otherwise acquire shares of its capital stock retire the MMI Holdings Preferred Stock in whole or warrants, rights or options to acquire any such shares in part for cash solely out of 25% of Net Income at any time and from time to time after the second anniversary of the Borrower and its Subsidiaries arising after March 27Initial Borrowing Date, 1999 and computed on a cumulative consolidated basisonly if, provided, that, immediately (1) after giving effect to such proposed actionpurchase, redemption, defeasance or retirement no Default shall exist and (2) the aggregate purchase or Event redemption price in any one year does not exceed 25% of Consolidated Net Income for the immediately preceding fiscal year of MMI;
(iv) MMI may pay cash Dividends to MMI Holdings so long as the cash proceeds thereof are promptly used by MMI Holdings for the purposes described in clause (iii) of this Section 8.07;
(v) MMI may purchase or retire any options to purchase any capital stock of MMI issued to and held by employees of MMI pursuant to the Employee Stock Option Plan, only if (1) after giving effect to such purchase or retirement no Default would existshall exist and (2) the aggregate purchase price in any one year does not exceed $500,000;
(vi) MMI-Singapore may redeem its preference shares with the consent of the Required Banks; and
(ivvii) Vanstar Financing Trust MMI may declare grant options and pay regularly accruing cash dividends on issue stock to members of management, employees and shareholders of MMI pursuant to the Trust Preferred Securities in accordance with the terms thereof in an amount not Employee Stock Option Plan, provided that after giving effect to exceed $9,000,000 in any fiscal yearsuch grant of options no Default -------- shall exist.
Appears in 1 contract
Samples: Credit Agreement (Modus Media International Holdings Inc)
Dividends, Etc. The Borrower (a) WLI will not, and will not permit any of its Subsidiaries to, make any cash payments on or in respect of the SARs ("SAR Cash Payments"), make Excess Deferred Payments and/or declare or pay any dividends (other than dividends payable solely in common capital stock of the Borrower or any such Subsidiary, as the case may bePerson) or return any capital to, its stockholders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock, stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, and the Borrower will not or permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock of the Borrower WLI or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary that is not a Material Subsidiary and Japan Subsidiary may pay dividends to its shareholders, provided that the Borrower may purchase, redeem amounts paid to any shareholder that is WLI or otherwise acquire shares a Subsidiary of its common stock or warrants or options to acquire any WLI shall not be less than such shares with shareholder's PRO RATA share of the proceeds received by the Borrower from the substantially concurrent issue of new shares of its common stockdividends being paid based on ownership interests in such Subsidiary;
(ii) any Subsidiary of the Borrower that is a Material Subsidiary may pay Dividends dividends to the Borrower or any Wholly-Owned Subsidiary of the BorrowerGuarantor;
(iii) issuances of WLI common stock pursuant to the Borrower Convertible Instruments;
(iv) provided that no Default under Section 9.01 or Event of Default is then in existence or would arise therefrom (determined for the purposes of Sections 8.10 through 8.14 on a PRO FORMA basis as if the Dividends and Repurchases referred to below were effected on the last day of the Test Period last ended) WLI may declare or (A) pay dividends in cash dividends to on the WLI Preferred when due and payable in accordance with its stockholders and terms, (B) make Excess Deferred Payments, (C) make SAR Cash Payments and/or (D) purchase, redeem redeem, retire or otherwise acquire shares of its ("Repurchases") capital stock of WLI now or warrants, hereafter outstanding (or any warrants for or stock appreciation rights or options to acquire (other than SARs) in respect of any such shares for cash solely out of 25% of Net Income of shares), provided that (w) WLI may not expend more than $50 million during the Borrower first two years following the Closing Date or $150 million in the aggregate after the Closing Date to make Repurchases and its Subsidiaries arising after March 27Excess Deferred Payments, 1999 and computed on a cumulative consolidated basis, provided, that, immediately (x) after giving effect to such proposed actionany Repurchase or Excess Deferred Payment, the Total Unutilized Commitment shall equal at least $150 million, (y) no Default more than $10 million may be expended in connection with Repurchases of WLI stock held by officers and directors and (z) after giving effect to any SAR Cash Payment, the Total Unutilized Commitment shall equal at least $100 million.
(b) WLI will not, and will not permit any of its Material Subsidiaries to, create or Event otherwise cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of Default would existany Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to any Designated Party, (b) make loans or advances to any Designated Party or (c) transfer any of its properties or assets to any Designated Party or (B) the ability of any Designated Party to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than prohibitions or restrictions existing under or by reason of (i) this Agreement and the other Credit Documents; and
(ii) applicable law; (iii) customary provisions restricting subletting or assignments of leases and/or non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) Vanstar Financing Trust may declare any restriction or encumbrance with respect to a Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; and pay regularly accruing cash dividends on the Trust Preferred Securities in accordance with (v) Liens permitted under Section 8.03 and any documents or instruments governing the terms thereof in an amount not of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to exceed $9,000,000 in any fiscal yearthe assets subject to such Liens.
Appears in 1 contract
