Dividends. The holders of the Deferral Preferred Shares, Series-[·] shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends.
Appears in 6 contracts
Samples: Assignment and Set Off Agreement (TransCanada Trust), Assignment and Set Off Agreement (Transcanada Pipelines LTD), Assignment and Set Off Agreement (TransCanada Trust)
Dividends. The holders Lead Borrower will not, and will not permit any of its Restricted Subsidiaries to, authorize, declare or pay any Dividends with respect to the Lead Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of the Deferral Preferred SharesLead Borrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to the Lead Borrower or to other Restricted Subsidiaries of the Lead Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of the Lead Borrower may declare and pay cash Dividends to its shareholders generally so long as the Lead Borrower or its Restricted 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, Series-[·] shall be entitled if any, of the various classes of Equity Interests of such Subsidiary);
(iii) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, the Lead Borrower may pay cash Dividends to receive Holdings to allow Holdings to pay cash dividends to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of such Parent Company from current or former members of management, employees, consultants, officers and directors (and their successors and assigns) of the Lead Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by the Lead Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings in respect of all such Equity Interests so redeemed or repurchased shall pay thereonnot (net of any cash proceeds received by Holdings (but in no event from any Initial Public Offering) from issuances of its Equity Interests (other than to the extent included in the Available Amount) and contributed to the Lead Borrower in connection with such redemption or repurchase), as and when declared in either case, exceed during any fiscal year of the Lead Borrower, $10,000,000 (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by the board Lead Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to the Lead Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (b)(x)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to the Lead Borrower from current or former members of management, officers, directors, employees of the Lead Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of any Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to the Lead Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and any other Parent Company shall cause the amount of such expenses to be repaid to the Lead Borrower or the relevant Restricted Subsidiary of the Lead Borrower out of the monies proceeds of such offering promptly if such offering is completed;
(v) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) the Lead Borrower may pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence;
(B) with respect to any taxable year (or portion thereof) ending after the Closing Date with respect to which the Lead Borrower (a) is treated as a corporation for U.S. federal, state, and/or local income tax purposes and (b) is a member of a consolidated, combined or similar income tax group (a “Tax Group”) of which any Parent Company or other entity is the common parent, federal, state and local income Taxes (including minimum Taxes) (or franchise and similar Taxes imposed in lieu of such minimum Taxes) that are attributable to the taxable income of the Corporation properly applicable Lead Borrower and its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Lead Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (B) with respect to the Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by such Unrestricted Subsidiary to the Lead Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(C) customary salary, bonus and other compensation and benefits payable to current and former officers, directors, consultants and employees of any Parent Company to the extent such salaries, bonuses and other compensation and benefits are reasonably attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Lead Borrower or any Parent Company;
(F) the purchase or other acquisition by any parent of the Lead Borrower of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if such purchase or other acquisition had been made by the Lead Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (A) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to the Lead Borrower or any Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.02) into the Lead Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchaser or other acquisition;
(G) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company directly attributable to the operations of the Lead Borrower and its Restricted Subsidiaries;
(vii) reasonable and customary indemnities to directors, officers and employees of any Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of the Lead Borrower and its Restricted Subsidiaries;
(viii) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal (x) obligations under or in respect of director and officer insurance policies to the quotient obtained by dividing: extent reasonably attributable to the ownership or operation of the Lead Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement (as in effect on the Closing Date;
(ix) any Dividend used to fund the Transaction, including Transaction Costs and the Special Dividend, and any Dividend from proceeds received in connection with any working capital adjustment pursuant to the Acquisition Agreement;
(x) the product obtained Lead Borrower may pay cash Dividends to Holdings (who may subsequently pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v) and 10.06(vii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity incentive awards;
(xii) a Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date, of up to 6% per annum of the net cash proceeds contributed to the capital of the Lead Borrower from any such Initial Public Offering;
(xiii) on a Pro Forma Basis, if the Consolidated First Lien Net Leverage Ratio does not exceed 3.00 to 1.00 and the Consolidated Total Net Leverage Ratio does not exceed 4.25 to 1.00, any Dividends to the extent the same are made solely with the Available Amount, so long as at the time of, and after giving effect to such Dividend, no Event of Default shall have occurred and be continuing;
(xiv) purchases of minority interests in non-Wholly-Owned Subsidiaries by multiplying the Lead Borrower and the Guarantors; provided that the aggregate amount of such purchases, when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed $1,000 5,000,000;
(xv) the declaration and payment of dividends or the payment of other distributions by the Lead Borrower in an aggregate amount since the Closing Date not to exceed $35,000,000;
(xvi) the Lead Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case of dividend or other distribution by a rate per annum equal Restricted Subsidiary, the Lead Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution;
(xvii) the Lead Borrower may make payments with the cash proceeds contributed to its common equity from the rate net cash proceeds of interest payable any equity issuance by any Parent Company, so long as, with respect to any such payments, no Event of Default shall have occurred and be continuing or would result therefrom; provided that the Trust on the Trust Notes as amount of any such cash proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (b)(x)(ii) of the Issue Datedefinition of “Available Amount”;
(xviii) the Lead Borrower and any Restricted Subsidiary may pay dividends and distributions within 60 days after the date of declaration thereof, by if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03; and
(xix) any Dividends, so long as (x) at the time of, and after giving effect to such Dividend, no Event of Default shall have occurred and be continuing and (y) four; provided that if an event on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio does not exceed 3.25 to 1.00. In determining compliance with this Section 10.03 (including a redemptionand in determining amounts paid as Dividends pursuant hereto for purposes of the definition of Consolidated EBITDA and Consolidated Net Income), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal deemed to be cash Dividends paid to Holdings to the product obtained by multiplying the amount extent provided in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendssaid Section 10.05(vi).
Appears in 6 contracts
Samples: First Lien Term Loan Credit Agreement (PAE Inc), Second Lien Term Loan Credit Agreement (PAE Inc), Second Lien Term Loan Credit Agreement (PAE Inc)
Dividends. The holders Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) Subsidiaries of the Deferral Preferred SharesParent may pay Dividends to another member of the NCLC Group; provided that the Borrower shall procure that any Dividends or other distributions and interest paid or payable in connection with such Dividends or other distributions to NCL International, Series-[·] Ltd., NCL America Holdings, LLC or Arrasas Limited shall be entitled to receive and the Corporation shall pay thereon, as and when declared received promptly by the board Parent directly or indirectly by way of directors out Dividend;
(ii) the Parent may pay Dividends in respect of the monies tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the Corporation properly applicable NCLC Group or holder of the Parent’s Capital Stock with respect to income taxable as a result of any member of the payment NCLC Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any member of dividendsthe NCLC Group; and
(iii) the Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on January 1, 2010 and ending on each the date prior to such Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: for which financial statements are available so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by no Default or Event or Default exists or would result from such Dividend and (y) four; at the time of such Dividend and after giving effect thereto the ratio of Total Net Funded Debt to Consolidated EBITDA for the four consecutive fiscal quarters last ended for which financial statements have been provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which Facility Agent pursuant to Section 9.01 is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other less than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends5.50:1.00.
Appears in 5 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Ninth Supplemental Deed (Norwegian Cruise Line Holdings Ltd.)
Dividends. The holders Borrower will not, and will not permit any of its Restricted Subsidiaries to, authorize, declare or pay any Dividends with respect to the Borrower or any of its Restricted Subsidiaries on or after the Closing Date, except that:
(i) any Restricted Subsidiary of the Deferral Preferred SharesBorrower may authorize, Series-[·] shall be entitled declare and pay Dividends or return capital or make distributions and other similar payments with regard to receive its Equity Interests to the Borrower or to other Restricted Subsidiaries of the Borrower which directly or indirectly own 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 Restricted 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) so long as no Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, the Borrower may pay cash Dividends to Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of such Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of Holdings, such other Parent Company, the Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by the Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall pay thereonnot (net of any cash proceeds received by Holdings from issuances of its Equity Interests (other than to the extent included in the Available Amount) and contributed to the Borrower in connection with such redemption or repurchase), as in either case, exceed during any fiscal year of the Borrower, the greater of $50,000,000 and when declared 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by the board Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings or any Parent Company, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to the Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to the Borrower from members of management, officers, directors, employees of the Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) the Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to the Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and any other Parent Company shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary of the Borrower out of the monies proceeds of such offering promptly if such offering is completed;
(v) the Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) the Borrower may authorize, declare and pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, the Borrower and its Restricted Subsidiaries;
(B) with respect to any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income tax group for U.S. federal and/or applicable state, local or foreign income or similar tax purposes of which a direct or indirect parent of the Corporation properly applicable Borrower is the common parent, the portion of any U.S. federal, state, local and/or foreign income and similar taxes (including any alternative minimum taxes) of such tax group that is attributable to the taxable income of the Borrower and/or such Subsidiaries; provided (1) that the amount of such payments made in respect of any taxable period in the aggregate do not exceed the amount that the Borrower and/or such Subsidiaries would have been required to pay in respect of such taxable period had the Borrower and/or such Subsidiaries been a stand-alone corporate taxpayer or tax group for all applicable taxable periods ending after the date hereof, (2) that the permitted payment pursuant to this clause (B) attributable to any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary and (3) that with respect to any taxable period (or portion thereof) ending prior to the Closing Date, distributions otherwise permitted under this clause (B) shall be permitted only to the extent such tax distribution relates to income tax audit adjustments that arise after the Closing Date;
(C) customary salary, bonus and other benefits payable to officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of the Borrower of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if such purchase or other acquisition had been made by the Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (A) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to the Borrower or any Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.02) into the Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchaser or other acquisition;
(G) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and
(H) without duplication of any other amounts permitted pursuant to Section 10.03(v) or this clause (vi), Public Company Costs;
(vii) reasonable and customary indemnities to directors, officers and employees of Holdings or any other Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(viii) the Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal (x) obligations under or in respect of director and officer insurance policies to the quotient obtained by dividing: extent reasonably attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend used to fund the Transactions, including Transaction Costs;
(x) the product obtained Borrower may authorize, declare and pay cash Dividends to Holdings (who may subsequently authorize, declare and pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v) and 10.06(vii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock after the Closing Date, not to exceed, in any fiscal year, 6% of such Parent Company’s Market Capitalization;
(xiii) any Dividends to the extent the same are made solely with the Available Amount, so long as, solely to the extent clause (a)(i)(B) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated Total Net Leverage Ratio does not exceed 4.50 to 1.00;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by multiplying the Borrower and the Guarantors; provided that the aggregate amount of such purchases, when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $1,000 30,000,000 and 6.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such purchase);
(xv) the authorization, declaration and payment of Dividends or the payment of other distributions by the Borrower in an aggregate amount since the Closing Date not to exceed the greater of $125,000,000 and 25.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend);
(xvi) the Borrower and each Restricted Subsidiary may authorize, declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case of Dividend or other distribution by a rate per annum equal Restricted Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution;
(xvii) the Borrower may authorize, declare and pay Dividends with the cash proceeds contributed to its common equity from the rate net cash proceeds of interest payable any equity issuance by any Parent Company, so long as, with respect to any such payments, no Event of Default shall have occurred and be continuing or would result therefrom; provided that the Trust on the Trust Notes as amount of any such cash proceeds that are utilized for any Dividend under this clause (xvii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(ii) of the Issue Datedefinition of “Available Amount” or the Contribution Amount;
(xviii) the Borrower and any Restricted Subsidiary may authorize, by declare and pay Dividends within 90 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03;
(xix) any Dividends, so long as (x) at the time of, and after giving effect to such Dividend, no Event of Default shall have occurred and be continuing and (y) four; provided that if an event (including on a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablePro Forma Basis, the dividend payable for Consolidated Total Net Leverage Ratio does not exceed 3.25 to 1.00;
(xx) the Borrower may authorize, declare and pay cash dividends or other distributions, or make loans or advances to, any partial Dividend Periods shall be equal Parent Company so long as (a) the proceeds thereof are used to make payments to minority shareholders pursuant to appraisal or dissenter’s rights with respect to shares in an Acquired Entity or Business held by such shareholders immediately prior to the product obtained acquisition and (b) such acquisition was made in compliance with Section 10.03(vi)(F);
(xxi) any Dividend, payment or distribution to any Parent Company to fund payments required to be made by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable such Parent Company pursuant to the partial Dividend Period Tax Receivable Agreement. In determining compliance with this Section 10.03 (and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not determining amounts paid in full on all as Dividends pursuant hereto for purposes of the Deferral Preferred Sharesdefinition of Consolidated EBITDA and Consolidated Net Income), Series-[·] then issued and outstanding, such dividend amounts loaned or the unpaid part thereof shall be paid on a subsequent date or dates advanced to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the CorporationHoldings pursuant to Section 10.05(vi) shall, to the payment of the same. The holders of the Deferral Preferred Sharesextent such loan or advance remains unpaid, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required deemed to be deducted) and payment thereof shall satisfy such dividendscash Dividends paid to Holdings to the extent provided in said Section 10.05(vi).
Appears in 4 contracts
Samples: Term Loan Credit Agreement (Vertiv Holdings Co), Term Loan Credit Agreement (Vertiv Holdings Co), Term Loan Credit Agreement (Vertiv Holdings Co)
Dividends. The holders of Notwithstanding the Deferral Preferred Sharesforegoing, Series-[·] the Employee shall be entitled not have the right to receive and the Corporation shall pay thereonany dividends or other distributions, as and when declared by the board of directors out of the monies of the Corporation properly applicable including any special or extraordinary dividends or distributions (with all references to “dividends” in this Agreement being deemed to also include reference to any such special distributions), with respect to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash Restricted Shares granted hereby unless and until the Restricted Shares become Earned Shares. Any such dividends equal declared and paid with respect to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof already Earned Shares shall be paid no later than the end of the calendar year in which the dividend for such class of stock is paid to stockholders of such class or, if later, the 15th day of the third month following the date the dividend is paid to stockholders of such class of stock. In the event the Company declares and pays a dividend in respect of its Common Stock and, on a subsequent the record date or dates for such dividend, the Employee holds Restricted Shares granted pursuant to this Agreement that have not yet become Earned Shares, the dividends with respect to such Restricted Shares shall be determined credited to an account maintained by the board of directors on which Company or the Corporation transfer agent for the Employee’s benefit (such dividends, “Unvested Dividends”). Such account is intended to constitute an “unfunded” account, and neither this Section 3(d) nor any action taken pursuant to or in accordance with this Section 3(d) shall have sufficient monies properly applicable, under the provisions be construed to create a trust of any applicable law kind. Amounts credited to such account with respect to Restricted Shares that become Earned Shares will become “Vested Dividends” on the date that such Restricted Shares vest in accordance with Section 3(b) and under will be paid to the provisions of Employee as soon as administratively practicable following that date; provided that, in all cases, any trust indenture securing bonds, debentures or other securities Vested Dividends that become payable pursuant to this Section 3(d) shall be paid no later than March 15 of the Corporation, calendar year following the calendar year during which such dividends become Vested Dividends pursuant to the payment paragraphs (b) and (d) of the samethis Section 3. The holders of the Deferral Preferred Shares, Series-[·] Employee shall not be entitled to receive any dividends other than interest with respect to the timing of payment of dividends. In the event all or in excess any portion of the cumulative preferential cash dividends hereinbefore provided. Payment Restricted Shares granted hereby fail to become Earned Shares, Unvested Dividends accumulated in the Employee’s account with respect to such Restricted Shares shall be made by electronic funds transfer or by cheque of or on behalf of forfeited to the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsCompany.
Appears in 4 contracts
Samples: Restricted Stock Agreement (Targa Resources Corp.), Restricted Stock Agreement (Targa Resources Corp.), Restricted Stock Agreement (Targa Resources Corp.)
Dividends. The holders Borrowers will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled authorize, declare or pay any Dividends with respect to receive Lead Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of a Borrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Lead Borrower or to other Restricted Subsidiaries of Lead Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Lead Borrower may declare and pay cash Dividends to its shareholders generally so long as Lead Borrower or its Restricted 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) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Lead Borrower may pay cash Dividends to Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of Lead Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by Lead Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall not (net of any cash proceeds received by Holdings from issuances of its Equity Interests (other than to the extent included in the Available Amount) and contributed to Lead Borrower in connection with such redemption or repurchase), in either case, exceed during any fiscal year of Lead Borrower, the greater of $20,000,000 and 1.50% of Consolidated Total Assets (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Lead Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the First Restatement Effective Date, where the net proceeds of such sale are received by or contributed to Lead Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Lead Borrower from members of management, officers, directors, employees of Lead Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Lead Borrower may pay thereoncash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to Lead Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and when declared by any other Parent Company shall cause the board amount of directors such expenses to be repaid to Lead Borrower or the relevant Restricted Subsidiary of Lead Borrower out of the monies proceeds of such offering promptly if such offering is completed;
(v) Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) Lead Borrower may pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, Lead Borrower and its Restricted Subsidiaries;
(B) with respect to any taxable year (or portion thereof) ending after the First Restatement Effective Date with respect to which any Borrower (a) is treated as a corporation for U.S. federal, state, and/or local income tax purposes and (b) is a member of a consolidated, combined or similar income tax group (a “Tax Group”) of which Holdings or any other Parent Company is the common parent, federal, state and local income Taxes (including minimum Taxes) (or franchise and similar Taxes imposed in lieu of such minimum Taxes) that are attributable to the taxable income of Lead Borrower and its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that Lead Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (B) with respect to the Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by such Unrestricted Subsidiary to a Borrower or the Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(C) customary salary, bonus and other benefits payable to officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Lead Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Lead Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Lead Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of Lead Borrower of all or substantially all of the Corporation properly applicable to the payment property and assets or business of dividendsany Person, on each Dividend Payment Dateor of assets constituting a business unit, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate line of interest payable by the Trust on the Trust Notes as business or division of such Person, or of all of the Issue Date, by (y) fourEquity Interests in a Person; provided that if an event such purchase or other acquisition had been made by Lead Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (including a redemptionA) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Lead Borrower or any Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.02) into Lead Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(G) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company directly attributable to the operations of Lead Borrower and its Restricted Subsidiaries; provided that the aggregate amount of Dividends made pursuant to subclauses (C), (D) and (G) of this clause (vi) shall occur that results not exceed the greater of $14,000,000 and 1.00% of Consolidated Total Assets (measured at the time of such Dividend) in accrued any fiscal year;
(vii) reasonable and unpaid dividends for a partial Dividend Period becoming payablecustomary indemnities to directors, officers and employees of Holdings or any other Parent Company in the dividend payable for any partial Dividend Periods shall be equal ordinary course of business, to the product obtained extent reasonably attributable to the ownership or operation of Lead Borrower and its Restricted Subsidiaries;
(viii) Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by multiplying the amount in Holdings (or subsequently paid to any other Parent Company) for payment of (x) above by a fraction, obligations under or in respect of director and officer insurance policies to the numerator of which is the actual number of days extent reasonably attributable to the partial ownership or operation of Lead Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend Period used to fund the Transaction, including Transaction Costs;
(x) [Reserved];
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend to Verra Mobility to fund a payment of dividends on Verra Mobility’s common stock, not to exceed, in any fiscal year, 5% of Verra Mobility’s market capitalization;
(xiii) any Dividends to the extent the same are made solely with the Available Amount, so long as, solely to the extent clause (a)(i)(B) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 5.20:1.00;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by Lead Borrower and the denominator Guarantors; provided that the aggregate amount of which is 365such purchases, subject when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $25,000,000 and 1.75% of Consolidated Total Assets (measured at the time of such Dividend);
(xv) the declaration and payment of Dividends or the payment of other distributions by Lead Borrower in an aggregate amount since the First Restatement Effective Date not to exceed the greater of $120,000,000 and 8.50% of Consolidated Total Assets (measured at the time of such Dividend);
(xvi) Lead Borrower and each Restricted Subsidiary may declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case to any applicable withholding tax. If on any of Dividend Payment Date the dividend payable on such date is not paid in full on all or other distribution by a Restricted Subsidiary, Lead Borrower or a Restricted Subsidiary receives at least its pro rata share of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or distribution;
(xvii) Lead Borrower may pay Dividends with the unpaid part thereof cash proceeds contributed to its common equity from the net cash proceeds of any equity issuance by any Parent Company, so long as, with respect to any such payments, no Event of Default shall have occurred and be paid continuing or would result therefrom; provided that the amount of any such cash proceeds that are utilized for any Dividend under this clause (xvii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”;
(xviii) Lead Borrower and any Restricted Subsidiary may pay Dividends within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03; and
(xix) any Dividends, so long as on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicablePro Forma Basis, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities as of the Corporationlast day of the most recently ended Test Period, the Consolidated Total Net Leverage Ratio does not exceed 3.75:1.00. In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the definitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall, to the payment of the same. The holders of the Deferral Preferred Sharesextent such loan or advance remains unpaid, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required deemed to be deducted) and payment thereof shall satisfy such dividendscash Dividends paid to Holdings to the extent provided in said Section 10.05(vi).
Appears in 4 contracts
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Dividends. The holders Subject to the following sentence, Borrower may, and may permit Parent to, (i) make any distributions in redemption of any Capital Stock of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower or the Parent and (ii) make or declare any dividends or similar distributions with respect to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Capital Stock of the monies Borrower or the Parent; provided that during the continuation of any Default, the Corporation properly applicable Borrower shall not (and shall not permit Parent to) declare or make any such dividends or distributions except that the Borrower and Parent may declare and make cash distributions to their respective shareholders in an aggregate amount not to exceed the greater of (x) an amount equal to ninety percent (90%) of Parent’s real estate investment trust taxable income and (y) the minimum amount necessary for the Borrower to remain in compliance with Section 6.10 and to otherwise avoid the payment of dividendsany income and/or excise taxes imposed under the Code, on each Dividend Payment Dateprovided, fixed cumulative preferential however, there shall not be any implied requirement that the Parent utilize the dividend deferral options in Section 857(b)(9) or Section 858(a) of the Internal Revenue Code. If a Default specified in Section 7.1, Section 7.6 or Section 7.7 shall exist, or if as a result of the occurrence of any other Default any of the Obligations have been accelerated pursuant to Section 8.1, the Borrower shall not, and shall not permit the Parent or any Subsidiary to, make any dividends or distributions to any Person other than the Borrower or a Subsidiary of the Borrower; provided that, in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, such Subsidiary may make distributions to holders of Capital Stock in such Subsidiary ratably according to the holders’ respective holdings of the type of Capital Stock in respect of which such distributions are being made and provided further that the Borrower may (and may permit Parent to), in all events, make cash dividends distributions to its shareholders in an aggregate amount equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal minimum amount necessary for Borrower to the rate of interest payable by the Trust on the Trust Notes as of the Issue Dateremain in compliance with Section 6.10, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payableprovided, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fractionhowever, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] there shall not be entitled to any dividends other than implied requirement that the Parent utilize the dividend deferral options in Section 857(b)(9) or in excess Section 858(a) of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsInternal Revenue Code.
Appears in 4 contracts
Samples: Credit Agreement (Kite Realty Group, L.P.), Term Loan Agreement (Kite Realty Group, L.P.), Credit Agreement (Kite Realty Group, L.P.)
Dividends. The holders None of the Deferral Preferred SharesBorrowers will, Series-[·] nor will it permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to such Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of Silgan may pay any Dividends to Silgan or a Wholly-Owned Subsidiary of Silgan so long as, in the case of non-cash Dividends, any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the applicable Security Documents in the assets so transferred shall remain in full force and effect and perfected (and with at least the same priority as in effect prior to such transfer);
(ii) any non-Wholly-Owned Subsidiary of Silgan may pay Dividends to its shareholders, partners or members generally so long as (x) the respective 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 the equity interest or 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) and (y) no Dividends may be paid by any Subsidiary of Silgan pursuant to this clause (ii) at any time that a Default or an Event of Default exists and any intercompany loans are outstanding to such Subsidiary;
(iii) Dividends made in connection with a Restructuring Transaction shall be entitled to receive permitted; and
(iv) so long as no Default or Event of Default has occurred and is continuing or would result therefrom and the Corporation shall pay thereonBorrowers are in compliance with the financial covenants set forth in Sections 9.07 and 9.08 (which, as and when declared by the board of directors out of the monies of the Corporation properly applicable except with respect to the payment of dividendsregular quarterly Dividends in the same per share amount as paid in the immediately preceding fiscal quarter, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal shall be calculated without giving effect to the quotient obtained by dividing: (xproviso of Section 9.08) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates Pro Forma Basis for the Test Period most recently ended for which financial statements have been delivered to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicableAdministrative Agent pursuant to Section 8.01, under the provisions of both immediately before and immediately after giving effect to such Dividends, Silgan may declare and pay any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsDividends.
Appears in 4 contracts
Samples: Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc)
Dividends. The holders Each of the Deferral Preferred SharesLead Borrower and any Restricted Subsidiary will not authorize, Series-[·] shall be entitled declare or pay any Dividends with respect to receive the Lead Borrower or any Restricted Subsidiary, except that:
(i) any Restricted Subsidiary may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to the Corporation shall pay thereon, as and when declared by the board of directors out Lead Borrower or to other Restricted Subsidiaries which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of the monies Lead Borrower may declare and pay cash Dividends to its shareholders generally so long as the Lead Borrower or any Restricted 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 Corporation properly applicable to Equity Interests in the payment of dividendsSubsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Datevarious classes of Equity Interests of such Subsidiary);
(iii) so long as no Default or Event of Default exists at the time of the applicable Dividend, by redemption or repurchase or would exist immediately after giving effect thereto, the Lead Borrower may pay cash Dividends to Holdings to allow Holdings to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Holdings from management, employees, officers and directors (yand their successors and assigns) fourof the Lead Borrower and any Restricted Subsidiary; provided that if an event (including a redemptionA) the aggregate amount of Dividends made by the Lead 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 shall occur that results in accrued not (net of any cash proceeds received by Holdings from issuances of its Equity Interests and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal contributed to the product obtained by multiplying Lead Borrower in connection with such redemption or repurchase), in either case, exceed $5,000,000 in any calendar year (with unused amounts in any calendar year being permitted to be carried over for the next two succeeding calendar years in an amount not exceeding $10,000,000 in the aggregate); (B) such amount in any calendar year may be increased by an amount not to exceed: (xI) above the cash proceeds of key man life insurance policies received by a fractionthe Lead Borrower or any Restricted Subsidiary after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to members of management, managers, directors or consultants of Holdings or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to the Lead Borrower; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to the Lead Borrower from members of management, officers, directors, employees of the Lead Borrower or any Subsidiary in connection with a repurchase of Equity Interests of Holdings will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings to pay expenses incurred by Holdings in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to the Lead Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings shall cause the amount of such expenses to be repaid to the Lead Borrower or the relevant Restricted Subsidiary of the Lead Borrower out of the proceeds of such offering promptly if such offering is completed;
(v) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings to pay costs (including all professional fees and expenses) incurred by Holdings in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable withholding tax. If on laws, applicable rules or regulations of any Dividend Payment governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) the Lead Borrower may pay cash dividends or other payments to, or make loans or advances to, any Holdings or the equity interest holders thereof in amounts required for any Holdings or the equity interest holders thereof to pay, in each case without duplication:
(a) franchise and similar Taxes (and other fees and expenses) required to maintain their corporate existence to the extent such Taxes, fees and expenses are reasonably attributable to the ownership or operations of the Lead Borrower and any Restricted Subsidiary;
(b) for any taxable period for which Lead Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income tax group for U.S. federal and/or applicable state, local or foreign income tax purposes of which a direct or indirect parent of the Lead Borrower is the common parent (a “Tax Group”), the portion of any U.S. federal, foreign, state and local income and similar Taxes (including alternative minimum Taxes) of such Tax Group, as applicable, for such taxable period that are attributable to the income of the Lead Borrower and/or its Subsidiaries, as applicable, provided that, in each case (i) the amount of such payments for any taxable period shall not exceed the amount of such Taxes that Lead Borrower and/or such Subsidiaries, as applicable, would have paid had Lead Borrower and/or such Subsidiaries, as applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate group) with respect to all taxable periods (or portions thereof) beginning after the Closing Date and (ii) the dividend payable on amount of such date is not paid payments for any taxable period in full on respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Lead Borrower or any of its Restricted Subsidiaries for such purpose;
(c) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of Holdings to the extent such costs and expenses are reasonably attributable to the ownership or operations of the Lead Borrower and any Restricted Subsidiary;
(d) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Lead Borrower or Holdings;
(e) the purchase or other acquisition by any parent of the Lead Borrower of all or substantially all of the Deferral Preferred Sharesproperty and assets or business of any Person, Series-[·] then issued and outstandingor of assets constituting a business unit, a line of business or division of such dividend Person, or of all of the unpaid part thereof Equity Interests in a Person; provided that, if such purchase or other acquisition had been made by the Lead Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided further that (A) such dividend, distribution, loan or advance shall be paid on a subsequent date made concurrently with the closing of such purchase or dates other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be determined by contributed to the board Lead Borrower or any Restricted Subsidiary or (2) the merger or amalgamation (to the extent permitted in Section 10.02) into the Lead Borrower or any Restricted Subsidiary of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures Person formed or acquired in order to consummate such purchaser or other securities acquisition; and
(f) any customary fees and expenses related to any unsuccessful equity offering by Holdings directly attributable to the operations of the CorporationLead Borrower and any Restricted Subsidiary;
(vii) reasonable and customary indemnities to directors, officers and employees of Holdings in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of the Lead Borrower and any Restricted Subsidiary;
(viii) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings for payment of obligations under or in respect of director and officer insurance policies to the same. The holders extent reasonably attributable to the ownership or operation of the Deferral Preferred SharesLead Borrower and any Restricted Subsidiary;
(ix) payments made in respect of dissenting shares and in respect of the Lead Borrower’s incentive stock or other equity based benefit plans, Series-[·] Director’s Compensation Plan and Nonqualified Savings Plan, including deferred accounts therein denominated in stock units in each case made in connection with the Acquisition (as defined in the Existing Credit Agreement);
(x) payments made in connection with the Ryerson 2014 Omnibus Plan up to $20,000,000;
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) the Lead Borrower and its Restricted Subsidiaries may consummate the transactions contemplated under the Restructuring Memo;
(xiii) the Lead Borrower and each Restricted Subsidiary may pay any Dividends so long as the Distribution Conditions are satisfied;
(xiv) purchases of minority interests in non-Wholly-Owned Subsidiaries by the Lead Borrower and the Guarantors; provided that the aggregate amount of such purchases, when added to the aggregate amount of investments pursuant to Section 10.05(xvii), shall not be entitled exceed $10,000,000;
(xv) [Reserved];
(xvi) the Lead Borrower and each Restricted Subsidiary may declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case of dividend or other distribution by a Restricted Subsidiary, the Lead Borrower or a Restricted Subsidiary receives at least its pro rata share of such Dividend or distribution;
(xvii) the Lead Borrower and each Restricted Subsidiary may make payments with the cash proceeds contributed to its common equity from the net cash proceeds of any equity issuance by Holdings, so long as such payments are made substantially concurrently with such contribution and, with respect to any dividends other than such payments, no Event of Default shall have occurred and be continuing or in excess would result therefrom; and
(xviii) the Lead Borrower and any Restricted Subsidiary may pay Dividends and distributions within 60 days after the date of declaration thereof, if at the cumulative preferential cash dividends hereinbefore provideddate of declaration of such payment, such payment would have complied with another provision of this Section 10.03; and
(xix) the Lead Borrower may make distributions to pay the remaining $10,000,000 management agreement termination fee payable to Platinum. Payment In determining compliance with this Section 10.03, amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required deemed to be deducted) and payment thereof shall satisfy such dividendscash Dividends paid to Holdings to the extent provided in said Section 10.05(vi).
Appears in 4 contracts
Samples: Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp)
Dividends. The holders Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) (A) any Wholly-Owned Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Parent may pay Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Parent or any Wholly-Owned Subsidiary of the monies Parent, (B) any Subsidiary Guarantor may pay Dividends to the Borrower or any other Subsidiary Guarantor and (C) if the respective Subsidiary is not a Wholly-Owned Subsidiary of the Corporation properly applicable Parent, such Subsidiary may pay Dividends to its shareholders generally so long as the Parent and/or its respective Subsidiaries which own Equity Interests in the Subsidiary paying such Dividends receive at least their proportionate share thereof (based upon their relative holdings of the Equity Interests in the Subsidiary paying such cash Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary);
(ii) so long as no Event of Default (both before and after giving effect to the payment thereof) has occurred and is continuing, the Parent may repurchase its outstanding Equity Interests (or options to purchase such equity) theretofore held by its or any of dividendsits Subsidiaries’ employees, on officers or directors following the death, disability, retirement or termination of employment of employees, officers or directors of the Parent or any of its Subsidiaries, provided that the aggregate amount expended to so repurchase equity of the Parent shall not exceed $2,000,000 in any fiscal year of the Parent; and
(iii) after the Merger Effective Time, so long as no cash, Indebtedness or other property of the Parent and its Subsidiaries is being paid by the Parent to such employees, former employees, directors or former directors in connection with such repurchase (A) the Parent may repurchase its outstanding Equity Interests held by its or any of its Subsidiary’s employees, former employees, directors and former directors pursuant to (i) that certain Stock Option Grant Agreement, dated as of July 8, 2014, by and between Navig8 and L. Xxxxxxx Xxxxx, as amended, supplemented or modified from time to time, (ii) that certain General Maritime Corporation 2012 Equity Incentive Plan and (iii) any grants or awards issued under any future management incentive plan entered into by Parent or any of its Subsidiaries, in each Dividend Payment Datecase, fixed cumulative preferential cash dividends in connection with any exercise by such employees, former employees, directors or former directors to purchase the Parent’s Equity Interest and (B) the Parent may repurchase its outstanding Equity Interests in an amount equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions value of any applicable law and under withholding taxes in connection with the provisions vesting of any trust indenture securing bonds, debentures or other securities of the Corporation, Equity Interests granted to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) its employees and payment thereof shall satisfy such dividendsdirectors.
Appears in 4 contracts
Samples: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.)
Dividends. The (a) In the event that a distribution with respect to the shares of CMR Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of CMR Common Stock on the Deferral Preferred SharesClosing Date immediately prior to the Merger Effective Time. In the event that a distribution with respect to the shares of capital stock of CCI permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, Series-[·] such distribution shall be paid to the holders of such shares of capital stock of CCI on the Closing Date immediately prior to the Merger Effective Time. CMR shall coordinate with CCI on the declaration, setting of record dates and payment dates of dividends on CMR Common Stock so that holders of CMR Common Stock (i) do not receive dividends on both CMR Common Stock and CCI Common Stock received in the REIT Merger in respect of a single distribution period or fail to receive a dividend on either CMR Common Stock or CCI Common Stock received in the REIT Merger in respect of a single distribution period or (ii) do not receive both a dividend permitted by the proviso to Section 6.2(b)(iii) on CCI Common Stock and a dividend permitted by the proviso to Section 6.1(b)(iii) on CMR Common Stock received in the REIT Merger or fail to receive either a dividend permitted by the proviso to Section 6.2(b)(iii) on CCI Common Stock or a dividend permitted by the proviso to Section 6.1(b)(iii) on CMR Common Stock received in the REIT Merger.
(b) In the event that either CMR or CCI shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii) or Section 6.2(b)(iii), respectively, it shall notify the other Party at least 20 days prior to the Closing Date, and such other Party shall be entitled to receive and declare a dividend per share payable (i) in the Corporation shall pay thereoncase of CMR, as and when to holders of CMR Common Stock, in an amount per share of CMR Common Stock equal to the product of (A) the dividend declared by CCI with respect to each share of CCI Common Stock by (B) the board Exchange Ratio, and (ii) in the case of directors out CCI, to holders of the monies CCI Common Stock, in an amount per share of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends CCI Common Stock equal to the quotient obtained by dividing: dividing (xA) the product obtained dividend declared by multiplying $1,000 CMR with respect to each share of CMR Common Stock by a rate per annum equal (B) the Exchange Ratio. The record date and time and payment date and time for any dividend payable pursuant to this Section 7.8(b) shall be prior to the rate of interest payable by the Trust on the Trust Notes as of the Issue Closing Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends.
Appears in 4 contracts
Samples: Merger Agreement (Cottonwood Multifamily Reit Ii, Inc.), Merger Agreement (Cottonwood Communities, Inc.), Merger Agreement (Cottonwood Multifamily Reit I, Inc.)
Dividends. The holders Holdings will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled pay any Dividends with respect to receive Holdings or any of the Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of Holdings may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Holdings or to other Restricted Subsidiaries of Holdings which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Holdings may declare and pay cash Dividends to its shareholders generally so long as Holdings or its Restricted 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) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Holdings may pay cash Dividends to any Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of such Parent Company from management, employees, officers and directors (and their successors and assigns) of Holdings and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fourRestricted Subsidiaries; provided that if an event (including a redemptionA) the aggregate amount of Dividends made by Holdings pursuant to this clause (iii), and the aggregate amount paid by such Parent Company in respect of all such Equity Interests so redeemed or repurchased shall not (net of any cash proceeds received by Holdings from issuances of its Equity Interests (other than to the extent included in the Available Amount) in connection with such redemption or repurchase), in either case, exceed during any fiscal year of Holdings, the greater of $31,800,000 and 10.0% of LTM Consolidated EBITDA (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (xiii)); (B) above such amount in any calendar year may be increased by a fractionan amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Holdings or any of the Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings or of any Parent Company which net proceeds are contributed to Holdings, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to members of management, managers, directors or consultants of any applicable withholding tax. If on Parent Company or any of its Subsidiaries that occurs after the Closing Date; provided that the amount of any such net proceeds that are utilized for any Dividend Payment under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Holdings from members of management, officers, directors, employees of Holdings or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Holdings may pay cash Dividends to any Parent Company to pay expenses incurred by any Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to Holdings, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as such Parent Company shall cause the amount of such expenses to be repaid to Holdings or the relevant Restricted Subsidiary of Holdings out of the proceeds of such offering promptly if such offering is completed;
(v) Holdings may pay cash Dividends to any Parent Company to pay costs (including all professional fees and expenses) incurred by such Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) for any taxable period in which (a) Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar U.S. federal, state, local and/or foreign income or similar tax group whose common parent is a Parent Company (a “Tax Group”) or (b) Holdings is a pass-through entity for U.S. federal income tax purposes that is owned by a Parent Company that is a corporation for U.S. federal income tax purposes (directly or indirectly through one or more corporate subsidiaries of such Parent Company (any such corporate subsidiaries, together with such Parent Company, the “Corporate Owners”)), Holdings may make distributions to any Parent Company to pay any consolidated, combined, unitary or similar U.S. federal, state, local and/or foreign income or similar income Taxes of such Tax Group, as applicable, or to any Corporate Owner to pay the U.S. federal, state, local and/or foreign income or similar Taxes of such Corporate Owner, in each case that are attributable to the taxable income of Holdings and/or its applicable Subsidiaries, as applicable; provided, that, (A) the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and/or its applicable Subsidiaries would have been required to pay in respect of such taxable period if such entity(ies) were a stand-alone corporate taxpayer or stand-alone corporate tax group consisting only of Holdings and/or such Subsidiaries for all relevant taxable periods, (B) the portion of any payment otherwise permitted pursuant to this clause (vi) with respect to any Taxes attributable to the income of any Unrestricted Subsidiary shall be limited to the amount actually paid by such Unrestricted Subsidiary to Holdings or any Loan Party for the purposes of paying such Taxes, and (C) with respect to any taxable period (or portion thereof) ending prior to the Closing Date, payments pursuant to this clause (vi) shall be permitted only to the extent relating to Tax adjustments that arise after the Closing Date as a result of audits or other Tax proceedings;
(vii) Holdings may pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the dividend equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings and the Restricted Subsidiaries;
(B) customary salary, bonus and other benefits payable on to officers and employees of any Parent Company to the extent such date is not paid salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Holdings and the Restricted Subsidiaries;
(C) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Holdings and the Restricted Subsidiaries (including, for the avoidance of doubt, administrative costs and expenses of Syncom-Iridium Holdings Corp. and/or Iridium Blocker-B. Inc.);
(D) cash payments in full on lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any Parent Company;
(E) for the purchase or other acquisition by any Parent Company of all or substantially all of the Deferral Preferred Sharesproperty and assets or business of any Person, Series-[·] or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that (1) if such purchase or other acquisition had been made by Holdings, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14, (2) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (3) such Parent Company shall, immediately following the closing thereof, cause (x) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Holdings or any Restricted Subsidiary or (y) the merger (to the extent permitted in Section 10.02) into Holdings or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(F) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company reasonably attributable to the operations of Holdings and the Restricted Subsidiaries; provided that the aggregate amount of Dividends made pursuant to subclauses (B), (C) and (F) of this clause (vii) shall not exceed the greater of $31,800,000 and 10.0% of LTM Consolidated EBITDA (measured at the time of such Dividend) in any fiscal year;
(viii) reasonable and customary indemnities to directors, officers and employees of any Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Holdings and the Restricted Subsidiaries;
(ix) Holdings may pay cash Dividends to any Parent Company for payment of obligations under or in respect of director and officer insurance policies to the extent reasonably attributable to the ownership or operation of Holdings and the Restricted Subsidiaries;
(x) any Dividend used to fund the Transaction, including Transaction Costs;
(xi) Holdings may pay cash Dividends to any Parent Company so long as the proceeds thereof are used to pay fees, expenses and indemnification payments that are then issued permitted to be paid pursuant to Sections 10.06(vii) and outstanding10.06(xii);
(xii) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xiii) a Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock, not to exceed, in any fiscal year, 5.0% of such Parent Company’s Market Capitalization;
(xiv) any Dividends to the extent the same are made solely with the Available Amount; provided that to the extent clause (a)(i)(B) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (x) no Event of Default under Section 11.01(a) or Section 11.01(e) shall have occurred and be continuing and (y) the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 5.50:1.00;
(xv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by Credit Parties; provided that the aggregate amount of such purchases, when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $31,800,000 and 10.0% of LTM Consolidated EBITDA (measured at the time of such Dividend);
(xvi) the declaration and payment of Dividends or the payment of other distributions by Holdings, so long as the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 4.00:1.00 and no Event of Default shall have occurred and be continuing or result therefrom;
(xvii) Holdings and each Restricted Subsidiary may declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case of Dividend or other distribution by a Restricted Subsidiary, Holdings or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution;
(xviii) Holdings may pay Dividends with the unpaid part thereof cash proceeds contributed to its common equity from the net cash proceeds of any equity issuance by any Parent Company completed after the Closing Date, so long as, with respect to any such payments, no Event of Default under Section 11.01(a) or 11.01(e) shall have occurred and be paid continuing or would result therefrom; provided that the amount of any such cash proceeds that are utilized for any Dividend under this clause (xviii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”;
(xix) Holdings and any Restricted Subsidiary may pay Dividends within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03;
(xx) Holdings and any Restricted Subsidiary may pay Dividends the proceeds of which are applied to make payments of scheduled coupon and principal, refinance, defease or discharge the Senior Notes;
(xxi) Holdings and any Restricted Subsidiary may make payments and distributions to dissenting stockholders pursuant to applicable law pursuant to or in connection with a sale, consolidation, merger or transfer of Holdings and the Restricted Subsidiaries taken as a whole that complies with the terms of this Agreement, including Section 10.02 hereof;
(xxii) Holdings and any Restricted Subsidiary may declare and pay Dividends to holders of any class or series of Qualified Preferred Stock issued by a Parent Company after the Closing Date; provided that (A) the Consolidated Fixed Charge Coverage Ratio at the time of the issuance of such Qualified Preferred Stock (calculated on a subsequent date Pro Forma Basis) is 2.00 to 1.00 or dates greater and (B) the aggregate amount of Dividends declared and paid pursuant to be determined this Section 10.03(xxii) does not exceed the net cash proceeds received by the board Parent Company and contributed to Holdings from any such sale of directors on Qualified Preferred Stock issued after the Closing Date and contributed to Holdings; and
(xxiii) Holdings and any Restricted Subsidiary may pay Dividends in an aggregate amount not to exceed the greater of $79,500,000 and 25% of LTM Consolidated EBITDA (measured at the time of such Dividend), which may, at the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities election of the CorporationBorrower (and without duplication), be reallocated to make Investments pursuant to Section 10.05(xix). In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the definitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to any Parent Company pursuant to Section 10.05(vi) shall, to the extent such loan or advance remains unpaid, be deemed to be cash Dividends paid to such Parent Company to the extent provided in said Section 10.05(vi). For purposes of determining compliance with this Section 10.03, if the payment of Dividends would be permitted pursuant to one or more provisions described above, the same. The holders Borrower, in its sole discretion, from time to time, may classify or reclassify or divide such payment of the Deferral Preferred Shares, Series-[·] shall not be entitled to Dividends (or any dividends other than or portion thereof) in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsmanner that complies with this Section 10.03.
Appears in 3 contracts
Samples: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)
Dividends. The holders Declare or pay, directly or indirectly, any dividends or make any other distribution, whether in cash, property, securities or a combination thereof, with respect to (whether by reduction of capital or otherwise) any shares of capital stock (or any options, warrants, rights or other equity securities or agreements relating to any capital stock) of the Deferral Preferred SharesBorrower, Series-[·] shall be entitled to receive and or set apart any sum for the Corporation shall pay thereonaforesaid purposes (collectively, “Restricted Payments”), except that:
(i) So long as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate no Default or Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default shall have occurred and be continuing or would result therefrom and (y) fourafter giving pro forma effect thereto, the Total Net Leverage Ratio on a pro forma basis as at the end of the trailing four Fiscal Quarters most recently ended immediately prior to the incurrence thereof, does not exceed 2.75:1.0, the Borrower may make Restricted Payments;
(ii) to the extent constituting Restricted Payments, the Borrower may enter into and consummate any transactions permitted under Section 5.02(d), (e) and (h);
(iii) the Borrower may make Restricted Payments in an amount up to the Available Amount Basket if at the time such Restricted Payment is made, no Default or Event of Default shall have occurred and be continuing and after giving effect to such Restricted Payment on a pro forma basis, the Borrower is in compliance with the Financial Covenant;
(iv) the Borrower may make Restricted Payments in respect of any class of its Capital Stock so long as such Restricted Payments are payable solely in shares of such class of Capital Stock; and
(v) to the extent constituting Restricted Payments, the Borrower may (a) convert shares of its Preferred Interests into shares of common stock or other common Capital Stock or (b) refinance such Preferred Interests (including related premiums) with Debt, provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which such Debt is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates permitted to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, incurred under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsSection 5.02(b).
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Dana Inc), Revolving Credit and Guaranty Agreement (Dana Inc), Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Dividends. The holders Borrower will not, nor will it permit any of the Deferral Preferred Sharesits Subsidiaries to, Series-[·] shall be entitled authorize, declare or pay any Dividends with respect to receive and the Corporation shall pay thereonBorrower or any of its Subsidiaries, as and when declared by the board except that:
(a) any Subsidiary of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: Borrower may (x) pay Dividends to Borrower or to any Wholly-Owned Subsidiary of Borrower and (y) if such Subsidiary is not a Wholly-Owned Subsidiary of Borrower, pay Dividends to its shareholders, partners or members generally so long as Borrower or its respective Subsidiary which owns the product obtained 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 the Subsidiary paying such Dividends and taking into account that the relative preferences, if any, of the various classes of equity interests in such Subsidiary);
(b) Borrower may pay or make Dividends so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) calculations are made by multiplying $1,000 by a rate per annum equal Borrower with respect to the rate financial covenants contained in Sections 9.08, 9.09 and 9.10 for the respective Calculation Period (to the extent that such financial covenants are in effect for such Calculation Period) on Pro Forma Basis as if the respective Dividend (as well as all other Dividends theretofore paid or made after the first day of interest payable by the Trust such Calculation Period) had occurred on the Trust Notes first day of such Calculation Period, and such calculations shall show that such financial covenants would have been complied with as of the Issue Datelast day of such Calculation Period, and (iii) in connection with the payment or making of cash Dividends, Borrower shall have delivered to Lender (with copies for Lender) a certificate executed by one of its Authorized Officers certifying compliance with the requirements of preceding clauses (yi) four; provided that if through (ii), inclusive, and containing the calculations (in reasonable detail) required by preceding clause (ii).
(c) For purposes of compliance with this Section 9.03, unless an event (including a redemption) shall occur that results in accrued Event of Default has occurred and unpaid dividends for a partial Dividend Period becoming payableis continuing, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on Borrower may pay any Dividend Payment Date within 45 days after the dividend payable on date of declaration thereof, if at the date of declaration such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall payment would have sufficient monies properly applicable, under complied with the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsthis Agreement.
Appears in 3 contracts
Samples: Credit Agreement (BOSTON OMAHA Corp), Credit Agreement (BOSTON OMAHA Corp), Credit Agreement (BOSTON OMAHA Corp)
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that:
(a) any Subsidiary of Borrower (i) may pay cash Dividends to Borrower or any Wholly Owned Subsidiary of Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary of Borrower, may pay cash Dividends to its shareholders generally so long as Borrower or its 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Deferral Preferred Sharesvarious classes of equity interests in such Subsidiary);
(b) so long as no Default exists or would result therefrom, Series-[·] Borrower may pay Dividends to Parent in order to enable Parent to repurchase outstanding shares of its capital stock (or options to purchase such capital stock) following the death, disability, retirement or termination of employment of employees, officers or directors of any Company or upon the exercise by any such person of any “put” right in respect of any such capital stock (or options); provided that the aggregate amount of Dividends paid by Borrower pursuant to this paragraph (b) shall not exceed an aggregate amount of $3.0 million (exclusive of any amounts repaid to Borrower concurrently therewith in respect of loans made pursuant to Section 6.03(i);
(c) Borrower may pay cash Dividends to Parent, so long as all proceeds thereof are promptly used by Parent to pay its franchise taxes and operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including legal and accounting expenses and similar expenses and customary fees to non-officer directors of Parent); provided that the aggregate amount of Dividends paid to Parent pursuant to this clause (c) shall not exceed $1.0 million in any fiscal year of Parent;
(d) Borrower or any Subsidiary may pay cash Dividends to Parent 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 Borrower and the Subsidiaries would have been liable for if any of the Companies had filed their taxes on a stand-alone basis, for the purpose of paying such taxes; provided that such payments shall be entitled made by Parent no earlier than five days prior to receive and the Corporation shall pay thereondate on which Parent is required to make its payments to the Internal Revenue Service or the applicable state tax authority, as and when declared applicable;
(e) Borrower may pay Dividends to Parent of capital stock of Parent to the extent such capital stock of Parent is acquired by Borrower as a result of a foreclosure action following a default on an advance, loan and/or other extension of credit permitted pursuant to Section 6.03(i);
(f) Borrower may pay Dividends to the board of directors out extent permitted by Section 6.06(h);
(g) Borrower may pay cash dividends or distributions, or make loans to, Parent in an amount not in excess of the monies amount required by Parent to enable it to make cash interest payments in respect of the Corporation properly applicable Permitted Parent Notes, which Dividends may be made not earlier than the fifth Business Day preceding the date on which such cash interest payments are due; provided that (i) if any Permitted Parent Hedge is in effect, (A) the amount permitted to be paid by Parent pursuant to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: foregoing shall not be greater than (x) the product obtained by multiplying $1,000 by a rate per annum equal to Applicable Margin as defined in the rate of interest payable by the Trust Permitted Parent Notes as in effect on the Trust date hereof times the principal amount of Permitted Parent Notes as of the Issue Date, by then outstanding plus (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in of Parent’s payment obligation under the Permitted Parent Hedge associated with such interest payment (net of payments then due to Parent under the Permitted Parent Hedge) and (B) if Borrower has elected to make payments of interest on the Permitted Parent Notes by the issuance of additional Permitted Parent Notes, (x) above by a fractionBorrower may pay cash dividends or distributions, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365or make loans to, subject Parent in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is an amount not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential amount required by Parent to enable it to make its payment obligation under the Permitted Parent Hedge associated with such interest payment (net of payments then due to Parent under the Permitted Parent Hedge) not earlier than the fifth Business Day preceding the date on which such payments are due and (y) if Parent receives a net payment under the Permitted Parent Hedge, Parent shall contribute such payment as an equity contribution to Borrower or as repayment of any loan from Borrower pursuant to this Section 6.05(g), (ii) on a Pro Forma Basis after giving effect to such dividend, distribution or loan and the payment of such interest or payment obligations (including any borrowing to fund such dividend, distribution or loan), Borrower shall be in compliance with the covenants set forth in Section 6.07 and no Default shall exist and (iii) the amount of any Dividend or loans made under this clause (g) after the Closing Date shall reduce the Available Basket Amount, which reduction may be to an amount less than $0;
(h) Borrower may pay cash dividends hereinbefore provided. Payment or distributions, or make loans to, Parent of up to $3,500,000 in the aggregate (the “Cash Collateral Basket”) to be used by Parent to provide cash collateral for the benefit of the counterparty to any Secured Permitted Parent Hedge; provided that (i) only up to $1,000,000 of the Cash Collateral Basket shall be made dividended, distributed or loaned by electronic funds transfer Borrower for providing the initial cash collateral on the initial Secured Permitted Parent Hedge, (ii) on a Pro Forma Basis after giving effect to each such dividend, distribution or loan (including any borrowing to fund such dividend, distribution or loan), Borrower shall be in compliance with the covenants set forth in Section 6.07 and no Default shall exist, (iii) upon termination of a Secured Permitted Parent Hedge that is not replaced by cheque of or on behalf another Secured Permitted Parent Hedge, any amount of the Corporation payable in lawful money Cash Collateral Basket not paid or owing to such counterparty under the terms of the United States master agreement relating to such Secured Permitted Parent Hedge shall be returned to Borrower (as an equity contribution to the extent that the payment to Parent was in the form of a dividend or distribution and as repayment of loan to the extent that the payment to Parent was in the form of a loan), (iv) if Parent enters into a Secured Permitted Parent Hedge after termination of a Secured Permitted Parent Hedge, any portion of the Cash Collateral Basket not already paid to a counterparty to a Secured Permitted Parent Hedge shall be available again as provided above and (v) the amount of any Dividend or loans made under this clause (h) after the Closing Date shall reduce the Available Basket Amount, which reduction may be to an amount less than $0;
(i) Borrower may pay a cash dividend to Parent on the Closing Date (or during the sixty (60) day period thereafter) with the proceeds of a portion of the Term Loans, which proceeds shall be used by Parent to purchase or redeem a portion of the Parent Floating Rate Notes to effect the Refinancing and pay any tax required to be deductedpremiums and fees and expenses in connection therewith; and
(j) and payment thereof shall satisfy such dividendsBorrower may pay Dividends in reliance on the Available Basket Amount.
Appears in 3 contracts
Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)
Dividends. The holders Authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except that:
(a) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower (i) may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Borrower or any Subsidiary of the monies Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary, may pay cash Dividends to its shareholders 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Corporation properly applicable various classes of equity interests in such Subsidiary);
(b) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), Holdings may repurchase its outstanding Equity Interests (or options to purchase such Equity Interests) following the death, disability, retirement or termination of dividendsemployment of employees, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate officers or directors of interest payable by the Trust on the Trust Notes as Holdings or any of the Issue Date, by (y) fourits Subsidiaries; provided that if an event (including i) all amounts used to effect such repurchases are obtained by Holdings from a redemptionsubstantially concurrent issuance of its Equity Interests (or options to purchase such Equity Interests) to other employees, members of management, executive officers or directors of Holdings or any of its Subsidiaries or (ii) to the extent the proceeds used to effect any repurchase pursuant to this clause (ii) are not obtained as described in preceding clause (i), the aggregate amount of Dividends paid by Holdings pursuant to this paragraph (b) (exclusive of amounts paid as described pursuant to preceding clause (i)) shall occur not exceed $4,000,000 in any fiscal year of Holdings; provided that, in the event that results the maximum amount which is permitted to be expended in accrued and unpaid dividends for a partial Dividend Period becoming payablerespect of Dividends during any fiscal year pursuant to this clause (b)(ii) is not fully expended during such fiscal year, the dividend payable for any partial Dividend Periods maximum amount which may be expended during the immediately succeeding fiscal year pursuant to this clause (b)(ii) shall be equal increased by such unutilized amount;
(c) the Borrower may pay cash Dividends to Holdings for the purpose of paying, so long as all proceeds thereof are promptly used by Holdings to pay, its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, legal and accounting expenses and similar expenses); provided that the aggregate amount of Dividends paid by the Borrower pursuant to this clause (c) shall not exceed $1,500,000 in any fiscal year of Holdings;
(d) the Borrower may pay cash Dividends to Holdings (whether or not pursuant to a Tax Sharing Agreement) for the purpose of paying, so long as all proceeds thereof are promptly used by Holdings to pay, franchise taxes and Federal, state and local income taxes and interest and penalties with respect thereto, if any, payable by Holdings; provided, however, that the amount of any such payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand-alone basis; provided further, however, that any refund shall be promptly returned by Holdings to the product obtained Borrower;
(e) the Borrower may pay cash Dividends to Holdings for the purpose of enabling Holdings to pay the Dividends referred to in clause (b) above, so long as all proceeds thereof are promptly used by multiplying Holdings to pay such Dividends; and
(f) the amount in (x) above by Preferred Stock Redemption shall be permitted and the Borrower may make a fraction, the numerator of which is the actual number of days attributable Dividend to Holdings to the partial Dividend Period and extent necessary to effect the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsStock Redemption.
Appears in 3 contracts
Samples: Credit Agreement (Amis Holdings Inc), Credit Agreement (Amis Holdings Inc), Credit Agreement (Amis Holdings Inc)
Dividends. The holders Declare or make, directly or indirectly, any Dividend, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Restricted Subsidiary may pay Dividends to the Company, any Restricted Subsidiaries of the Deferral Company that are Guarantors and any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Dividend is being made, or, in the case of the Company or any of its Restricted Subsidiaries which owns the Equity Interest in the Restricted Subsidiary paying such Dividends, at least its proportionate share thereof;
(b) the Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the Company and each Restricted Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(d) the Company may redeem, repurchase or otherwise acquire for value outstanding shares of Company Common Stock (or options, warrants or other rights to acquire such Company Common Stock) following the death, disability, retirement or termination of employment of officers, directors or employees of the Company or any of its Restricted Subsidiaries, provided that (x) the aggregate amount of all such redemptions and repurchases pursuant to this Section 7.06(d) shall not exceed the greater of $5,000,000 and 1.50% of LTM Consolidated EBITDA (as of the date of the making of such Dividend) in any fiscal year of the Company (less the amount of any such redemption or repurchase effected by the forgiveness of Indebtedness owed to the Company by such officer, director or employee) and (y) at the time of any such redemption or repurchase permitted to be made pursuant to this Section 7.06(d), no Default or Event of Default shall then exist or result therefrom;
(e) the Company may pay regularly scheduled Dividends on its Qualified Preferred SharesStock pursuant to the terms thereof solely through the issuance of additional shares of such Qualified Preferred Stock (but not in cash), Series-[·] shall be entitled provided that in lieu of issuing additional shares of such Qualified Preferred Stock as Dividends, the Company may increase the liquidation preference of the shares of Qualified Preferred Stock in respect of which such Dividends have accrued;
(f) the Company may acquire shares of its Equity Interests in connection with the exercise of stock options or warrants to receive the extent such Equity Interests represent a portion of the exercise price of those stock options or warrants by way of cashless exercise;
(g) the Company may make Dividends consisting of the issuance of equity rights convertible into Qualified Preferred Stock in connection with certain “anti-takeover” and the Corporation shall pay thereon, as and when declared “poison pill” arrangements approved by the board of directors out of the monies Company;
(h) the Company may make Dividends to directors, officers and employees of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results Company and its Restricted Subsidiaries in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for connection with any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined incentive plans approved by the board of directors of the Company consisting of (i) shares of Company Common Stock (or options, warrants and other equity instruments in respect thereof), (ii) cash incentive bonuses, and (iii) stock appreciation rights or performance units, including any cash payments in connection therewith;
(i) upon any conversion of any Permitted Convertible Notes at maturity into shares of Company Common Stock, the Borrower may make Dividends consisting of the exercise of the applicable Call Spread Option relating to such Permitted Convertible Notes;
(j) [reserved];
(k) so long as no Event of Default then exists or would result therefrom, Dividends in an aggregate amount on which or after the Corporation shall Closing Date not to exceed, when taken together with the aggregate amount of prepayments, repayments, redemptions, repurchases or acquisitions of Indebtedness pursuant to Section 7.14(b) made on or after the Closing Date, the greater of $50,000,000 and 13.00% of LTM Consolidated EBITDA (as of the date of the making of such Dividend); and
(l) additional Dividends so long as the Payment Conditions are satisfied;
(m) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have sufficient monies properly applicable, under complied with the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsthis Agreement.
Appears in 3 contracts
Samples: Abl Credit Agreement (Ciena Corp), Abl Credit Agreement (Ciena Corp), Abl Credit Agreement
Dividends. The holders Pay any Dividends with respect to any Company, except that:
(a) any Subsidiary of Borrower (i) may pay cash Dividends to Borrower or any Wholly Owned Subsidiary of Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary of Borrower, may pay cash Dividends to its shareholders generally so long as Borrower or its Subsidiary that 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Deferral Preferred Sharesvarious classes of Equity Interests in such Subsidiary);
(b) any Non-Guarantor Subsidiary (i) may pay cash Dividends to its parent and (ii) if such Non-Guarantor Subsidiary is not a Wholly Owned Subsidiary, Series-[·] may pay cash Dividends to its shareholders generally so long as the Subsidiary of Holdings that owns the Equity Interest 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)
(c) so long as no Default or Event of Default exists or would result therefrom, Borrower and each Guarantor may pay Dividends for the purpose of enabling Holdings to, and Holdings may, repurchase outstanding shares of its capital stock (or options to purchase such common stock) following the death, disability, retirement or termination of employment of current or former employees, officers, distributors or directors of any Company; provided that, (i) all amounts used to effect such repurchases are obtained by Holdings from a substantially concurrent issuance of its capital stock (or exercise of options to purchase such capital stock) to other employees, members of management, distributors, executive officers or directors of Holdings, Borrower or any of its Subsidiaries; or (ii) to the extent the proceeds used to effect any repurchase pursuant to this clause (ii) are not obtained as described in preceding clause (i), the aggregate amount of Dividends paid by Holdings pursuant to this Section 6.05(c) (exclusive of amounts paid as described pursuant to preceding clause (i)) shall be entitled not exceed $10.0 million in the aggregate on and after the Closing Date plus the amount of any key-man life insurance proceeds actually received in any fiscal year of Holdings;
(d) so long as no Default or Event of Default exists or would result therefrom, Borrower and each Guarantor may pay cash Dividends for the purpose of paying, so long as all proceeds thereof are promptly used to receive pay, each Loan Party’s operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including legal and accounting expenses and similar expenses); provided that, the Corporation aggregate amount of Dividends paid pursuant to this Section 6.05(d) shall not exceed $150,000 in any fiscal year of Holdings;
(e) so long as, after giving effect to any such cash Dividend on a pro forma basis, no Default or Event of Default exists or would result therefrom, Borrower and each Guarantor may pay thereoncash Dividends for the purpose of enabling Holdings to pay (so long as all proceeds thereof are used by Holdings to pay) regularly scheduled payments of stated interest (and any applicable withholding tax gross-up payments or other tax indemnity payments in respect thereof) on, or the redemption price (including any premium required and interest on amounts redeemed) in respect of, the Holdings Senior Notes (pursuant to the terms of the Holdings Senior Note Documents as in effect on the Closing Date), so long as, until such time as the amount of cash Dividends made by Borrower pursuant to this Section 6.05(e) are applied to the payment of such regularly scheduled payments of stated interest (and when declared any applicable withholding tax gross-up payments or other tax indemnity payments in respect thereof) on, or the redemption price (including any premium required and interest on amounts redeemed) in respect of, the Holdings Senior Notes, the Collateral Agent shall have a valid and perfected Lien on and security interest in such proceeds in accordance with Sections 5.11 and 5.12;
(f) so long as no Default or Event of Default exists or would result therefrom, Holdings and any Subsidiary of Holdings may make Dividends in respect of any stock appreciation rights, plans, equity incentive or achievement plans or any similar plan, so long as such rights or similar plans are approved by the board of directors out of Holdings (or a duly constituted committee thereof);
(g) so long as no Default or Event of Default exists or would result therefrom, any Subsidiary of Holdings may purchase the capital stock of Holdings in connection with the exercise of stock option or similar arrangements by a director, officer or employee of such Subsidiary; provided, that such capital stock is immediately granted to the applicable director, officer or employee of such Subsidiary;
(h) Borrower and each Guarantor may pay cash Dividends to allow Holdings to pay cash Dividends so long as (i) no Default or Event of Default exists or would result therefrom and (ii) after giving effect to any such Dividend by Holdings the aggregate amount of Dividends paid by Holdings after the Closing Date pursuant to this Section 6.05(h) does not exceed the sum of (i) $300.0 million plus (ii) 50% of cumulative Consolidated Net Income of Holdings and its Subsidiaries for the period (taken as one accounting period) from the beginning of the monies first fiscal quarter of the Corporation properly applicable 2007 fiscal year to the payment last day of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal the fiscal quarter most recently ended prior to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as date of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer Holdings for which financial statements are available; and
(i) Borrower and its direct and indirect parent companies may pay cash Dividends to their respective parent companies (and such parent companies may pay cash Dividends) to the extent of U.S. federal and state income and other tax obligations of WH Capital to the extent that such U.S. federal and state income and tax obligations are reasonably attributable to income or by cheque of or on behalf operations of the Corporation payable in lawful money Borrower and any of its Subsidiaries. Any payments made pursuant to this Section 6.05(i) shall, no later than the United States (less any tax required 30th day after receipt, either be used to pay such obligations to the applicable taxing authority or be deducted) and payment thereof shall satisfy such dividendsremitted to the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Ltd.)
Dividends. The holders of Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the Deferral Preferred Shares, Series-[·] following shall be entitled permitted:
(a) any Subsidiary of Borrower may pay cash Dividends to receive Borrower or any Guarantor that is a Wholly Owned Subsidiary of Borrower;
(b) payments to Holdings to permit Holdings, and the Corporation subsequent use of such payments by Holdings, to repurchase or redeem Qualified Capital Stock of Holdings held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service or pay interest or principal in respect of Holdings Employee Notes; provided that the aggregate cash consideration paid for all such redemptions and payments shall pay thereonnot exceed, as and when declared by in any calendar year the board sum of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal 3.0 million (and up to 50% of such $3 million not used in any calendar year may be carried forward to the rate of interest payable by the Trust on the Trust Notes as of the Issue Datenext succeeding (but no other) calendar year), by plus (y) four; provided the amount of any Net Cash Proceeds received by or contributed to Borrower from the issuance and sale since the Issue Date of Qualified Capital Stock of Holdings to officers, directors or employees of Holdings or any of its Subsidiaries that if an event have not been used to make any repurchases, redemptions or payments under this clause (including a redemptionb), plus (z) shall occur the net cash proceeds of any "key-man" life insurance policies of Holdings, Borrower or any Subsidiary that results in accrued and unpaid dividends for a partial Dividend Period becoming payablehave not been used to make any repurchases, the dividend payable for any partial Dividend Periods shall be equal redemptions or payments under this clause (b);
(A) to the product obtained extent actually used by multiplying the amount in (x) above Holdings or another direct or indirect parent company of Borrower to pay such taxes, costs and expenses, payments by a fraction, the numerator of which is the actual number of days attributable Borrower to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable Holdings in lawful money of the United States (less any tax an amount sufficient to pay franchise taxes and other fees required to be deductedmaintain the legal existence of Holdings or another direct or indirect parent corporation of Borrower and (B) payments by Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordi- nary course of business of Holdings or another direct or indirect parent corporation of Borrower, in the case of clauses (A) and payment (B) in an aggregate amount not to exceed $750,000 in any calendar year; and
(d) the making by Borrower of Dividends to Holdings constituting Permitted Tax Distributions, and the subsequent distribution by Holdings of all or a portion thereof shall satisfy such dividendsto the its direct or indirect equity holders.
Appears in 3 contracts
Samples: Credit Agreement (Norcraft Companies Lp), Credit Agreement (Norcraft Companies Lp), Credit Agreement (Norcraft Companies Lp)
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that:
(a) any Subsidiary of Borrower (i) may pay cash Dividends to Borrower or any Wholly Owned Subsidiary of Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary of Borrower, may pay cash Dividends to its shareholders generally so long as Borrower or its 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Deferral Preferred Sharesvarious classes of equity interests in such Subsidiary);
(b) so long as no Default exists or would result therefrom, Series-[·] shall be entitled Borrower may pay Dividends to receive and Holdings for the Corporation shall pay thereonpurpose of paying Dividends to Parent in order to enable Parent to repurchase outstanding shares of its capital stock (or options to purchase such capital stock) following the death, as and when declared disability, retirement or termination of employment of employees, officers or directors of any Company or upon the exercise by the board any such person of directors out any “put” right in respect of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: any such capital stock (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fouror options); provided that if the aggregate amount of Dividends paid by Borrower pursuant to this paragraph (b) shall not exceed an event aggregate amount of $3.0 million (exclusive of any amounts repaid to Borrower concurrently therewith in respect of loans made pursuant to Section 6.03(j);
(c) Borrower may pay cash Dividends to Holdings for the purpose of paying cash Dividends to Parent, so long as all proceeds thereof are promptly used by Parent to pay its franchise taxes and operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including a redemptionlegal and accounting expenses and similar expenses and customary fees to non-officer directors of Parent); provided that the aggregate amount of Dividends paid to Holdings pursuant to this clause (c) shall occur that results not exceed $1.0 million in accrued and unpaid any fiscal year of Parent;
(d) Borrower or any Subsidiary may pay cash Dividends to Holdings for the purpose of paying cash dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the Parent in an amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment federal and state (in such states that permit consolidated or combined tax returns) income tax liability that Borrower and the Subsidiaries would have been liable for if any of the Companies had filed their taxes on a stand-alone basis, for the purpose of paying such taxes; provided that such payments shall be made by electronic funds transfer or by cheque of or Parent no earlier than five days prior to the date on behalf of the Corporation payable in lawful money of the United States (less any tax which Parent is required to be deductedmake its payments to the Internal Revenue Service, as applicable;
(e) and payment thereof shall satisfy Borrower may pay Dividends to Holdings for the purpose of paying dividends to Parent of capital stock of Parent to the extent such dividendscapital stock of Parent is acquired by Borrower as a result of a foreclosure action following a default on an advance, loan and/or other extension of credit permitted pursuant to Section 6.03(j); and
(f) Borrower may pay Dividends to the extent permitted by Section 6.06(h).
Appears in 2 contracts
Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)
Dividends. The Declare, make or pay any Dividend Payments on any shares of any class of Equity Interests, either directly or indirectly, except that:
(a) Subsidiaries of Holdco may pay Dividend Payments pro rata to the holders of their Equity Interests (giving effect to relative preferences and priorities);
(b) each of Borrower, Holdco and any of its Subsidiaries may pay or make Dividend Payments or distributions to any holder of its Equity Interests in the Deferral Preferred Shares, Series-[·] shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board form of directors out additional shares of Equity Interests of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) foursame class and type; provided that if an event in the case of Subsidiaries, such Dividend Payments or distributions are made to the holders of such Equity Interests on a pro rata basis;
(including a redemptionc) Borrower may make Dividend Payments to Holdco so long as the proceeds thereof shall ultimately be used by Holdco (and Holdco shall be entitled) to repurchase shares of Equity Interests of Holdco or its parent companies owned by former, present or future employees, officers and directors of Holdco, Borrower or any Subsidiary or their assigns, estates and heirs; provided that the aggregate amount of Dividend Payments made by Borrower pursuant to this paragraph (c) shall occur not in the aggregate exceed the sum of (i) $20,000,000 during the term of this Agreement plus (ii) the amount of net cash proceeds received by or contributed to Borrower from the issuance and sale of Equity Interests of Holdco or Borrower, to officers, directors or employees of Holdco or any Subsidiary (it being understood that results the discharge of any Indebtedness owing from any officer, director or employee to Holdco or Borrower in accrued and unpaid dividends exchange for the redemption of Equity Interests owned by such officer, director or employee shall not constitute a partial Dividend Period becoming payablePayment) plus (iii) the proceeds of any key man life insurance policies; provided, however, that for the dividend payable avoidance of doubt, an “employee” shall include each person who would be so classified but for any partial Dividend Periods shall be equal such person’s holding an Equity Interest;
(d) (i) to the product obtained extent actually used by multiplying the amount in (x) above by a fractionsuch parent to pay such taxes, the numerator of which is the actual number of days attributable costs and expenses, Holdco may make payments to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable its parent in lawful money of the United States (less any tax an amount sufficient to pay franchise taxes and other fees required to be deductedmaintain the legal existence of Holdco and (ii) Holdco may make payments to or on behalf of its parent in an amount sufficient to pay out-of-pocket legal, accounting and payment thereof shall satisfy filing costs and other expenses and liabilities in the nature of overhead in the ordinary course of business of such dividendsparent, in the case of clause (ii) in an aggregate amount not to exceed such $1,000,000 in any Fiscal Year;
(i) Borrower may distribute amounts equal to Permitted Tax Distributions to Holdco, so long as Holdco uses funds therefrom to pay its taxes or applies such funds in accordance with the following clause (ii), and (ii) Holdco may make Permitted Tax Distributions to the holders of its Equity Interest;
(f) to the extent constituting Dividend Payments, the transactions permitted by Section 6.12; and
(g) provided no Event of Default is continuing or would result therefrom, Borrower may make Dividend Payments to Holdco and Holdco may make Dividend Payments to the holders of its Equity Interest in an aggregate amount not to exceed (x) $25,000,000, so long as the Total Leverage Ratio before and after giving effect to such Dividend Payment is less than or equal to 4.00 to 1.00 and (y) $50,000,000, so long as the Total Leverage Ratio before and after giving effect to such Dividend Payment is less than or equal to 3.00 to 1.00; and
(h) provided no Event of Default is continuing or would result therefrom, Borrower may make Dividend Payments to Holdco and Holdco may make Dividend Payments to the holders of its Equity Interest in an aggregate amount not to exceed $5,000,000.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)
Dividends. The holders At any time that the Leverage Ratio equals or exceeds 6.00:1.00, the Company will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Company or any of its Subsidiaries, except that:
a) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Company may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Company or to a Wholly-Owned Subsidiary of the monies Company;
b) any non-Wholly-Owned Subsidiary of the Corporation properly applicable Company may pay cash Dividends to its shareholders, members or partners generally so long as the payment Company 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 dividendsequity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential cash dividends equal of the various classes of equity interests in such Subsidiary); provided, however, that this Section 7.11 shall not limit the redemption or repurchase of equity interests of a shareholder, member or partner of any non-Wholly-Owned Subsidiary of the Company if such redemption or repurchase is permitted pursuant to the quotient obtained by dividing: Section 7.10;
c) so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate no Specified Default or Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default then exists or would exist immediately after giving effect thereto and (y) four; provided that if an event (including HHRI qualifies, or has taken all other actions necessary to qualify, as a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable“real estate investment trust” under the Code during any fiscal year of HHRI, the dividend payable for any partial Dividend Periods shall Company may pay quarterly cash Dividends (which may be equal based on estimates) to HHRI and all other holders of OP Units generally when and to the product obtained extent necessary for HHRI to distribute, and HHRI may so distribute, cash Dividends to its shareholders generally in an aggregate amount not to exceed the greater of (I) the greatest of (A) 100% of Cash Available for Distribution for such fiscal year, (B) 100% of Taxable Income and (C) the minimum amount necessary for HHRI to maintain its tax status as a real estate investment trust and to satisfy the distributions required to be made by multiplying Notice 88-19 under the amount in Code (or Treasury regulations issued pursuant thereto) by reason of HHRI making the election provided for therein and (II) at any time when, based upon the financial statements delivered pursuant to Section 6.11(a) or (b) and the Company’s estimation of the results of the current fiscal quarter, the Consolidated Interest Coverage Ratio is greater than 2.00:1:00, 85% of the Adjusted Funds From Operations for the current fiscal year;
d) so long as no Specified Default or Event of Default then exists or would result therefrom, the Company may pay cash Dividends to HHRI so long as the proceeds therefrom are promptly used by HHRI to pay (x) any Permitted Tax Payments at the time and to the extent actually due and payable (but without duplication of any tax payments permitted to be made pursuant to Section 7.11(c) above to satisfy the distribution required to be made by a fractionNotice 88-19 under the Code (or Treasury regulations issued pursuant thereto)) and (y) any general corporate and other overhead expenses and liabilities incurred by it to the extent not otherwise prohibited by this Agreement;
e) so long as no Specified Default or Event of Default then exists or would result therefrom, the numerator Company may pay cash Dividends to HHRI in an aggregate amount not to exceed $10,000,000 for the Availability Period; and
f) the Company may pay cash Dividends to HHRI so long as HHRI promptly thereafter uses the proceeds of which is the actual number such Dividends to repurchase shares of days attributable to the partial Dividend Period its capital stock, and the denominator of which is 365Company may repurchase OP Units, subject in each case so long as (x) no Specified Default or Event of Default then exits or would result therefrom, (y) the aggregate amount of all repurchases and redemptions made pursuant to this Section 7.11(f) in any applicable withholding tax. If on any Dividend Payment Date fiscal year of HHRI does not exceed an amount equal to 1% of Adjusted Total Assets determined at the dividend payable on such date is not paid in full on all time of declaration of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or Dividend (with any unused Roll Forward Amount from one fiscal year increasing the unpaid part thereof shall amount available to be paid on as a Dividend under this Section 7.11(f) in subsequent date or dates to fiscal years). Dividends paid during a period when the Leverage Ratio is less than 6.00:1.00 shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be determined by counted against the board baskets provided for in this Section 7.11 (as applicable) for purposes of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsdetermining basket availability only.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts L.P.)
Dividends. The holders Subject to the following sentence, Borrower may, and may permit Parent to, (i) make any distributions in redemption of any Capital Stock of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower or the Parent and (ii) make or declare any dividends or similar distributions with respect to receive and the Corporation shall pay thereon, as and when declared by the board of directors out its commonthe Capital Stock of the monies Borrower or the Parent; provided that during the continuation of any Default, the Corporation properly applicable Borrower shall not (and shall not permit Parent to) declare or make any such dividends or distributions except that the Borrower and Parent may declare and make cash distributions to itstheir respective shareholders in an aggregate amount not to exceed the greater of (x) an amount equal to ninety percent (90%) of BorrowerParent’s real estate investment trust taxable income and (y) the minimum amount necessary for the Borrower to remain in compliance with Section 6.10 and to otherwise avoid the payment of dividendsany income and/or excise taxes imposed under the Code, on each Dividend Payment Dateprovided, fixed cumulative preferential however, there shall not be any implied requirement that the Parent utilize the dividend deferral options in Section 857(b)(9) or Section 858(a) of the Internal Revenue Code. If a Default specified in Section 7.1, Section 7.6 or Section 7.7 shall exist, or if as a result of the occurrence of any other Default any of the Obligations have been accelerated pursuant to Section 8.1, the Borrower shall not, and shall not permit the Parent or any Subsidiary to, make any dividends or distributions to any Person other than the Borrower or a Subsidiary of the Borrower; provided that, in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, such Subsidiary may make distributions to holders of Capital Stock in such Subsidiary ratably according to the holders’ respective holdings of the type of Capital Stock in respect of which such distributions are being made and provided further that the Borrower may (and may permit Parent to), in all events, make cash dividends distributions to its shareholders in an aggregate amount equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal minimum amount necessary for Borrower to the rate of interest payable by the Trust on the Trust Notes as of the Issue Dateremain in compliance with Section 6.10, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payableprovided, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fractionhowever, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] there shall not be entitled to any dividends other than implied requirement that the Parent utilize the dividend deferral options in Section 857(b)(9) or in excess Section 858(a) of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsInternal Revenue Code.
Appears in 2 contracts
Samples: Credit Agreement (Kite Realty Group, L.P.), Term Loan Agreement (Kite Realty Group, L.P.)
Dividends. The holders Borrowers will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled authorize, declare or pay any Dividends with respect to receive Lead Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of a Borrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Lead Borrower or to other Restricted Subsidiaries of Lead Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Lead Borrower may declare and pay cash Dividends to its shareholders generally so long as Lead Borrower or its Restricted 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) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Lead Borrower may pay cash Dividends to Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of Lead Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by Lead Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall not (net of any cash proceeds received by Holdings (but in no event from any Initial Public Offering) from issuances of its Equity Interests (other than to the extent included in the Available Amount) and contributed to Lead Borrower in connection with such redemption or repurchase), in either case, exceed during any fiscal year of Lead Borrower, the greater of $11,250,000 and 1.00% of Consolidated Total Assets (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Lead Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to Lead Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Lead Borrower from members of management, officers, directors, employees of Lead Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Lead Borrower may pay thereoncash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to Lead Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and when declared by any other Parent Company shall cause the board amount of directors such expenses to be repaid to Lead Borrower or the relevant Restricted Subsidiary of Lead Borrower out of the monies proceeds of such offering promptly if such offering is completed;
(v) Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) Lead Borrower may pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, Lead Borrower and its Restricted Subsidiaries;
(B) with respect to any taxable year (or portion thereof) ending after the Closing Date with respect to which any Borrower (a) is treated as a corporation for U.S. federal, state, and/or local income tax purposes and (b) is a member of a consolidated, combined or similar income tax group (a “Tax Group”) of which Holdings or any other Parent Company is the common parent, federal, state and local income Taxes (including minimum Taxes) (or franchise and similar Taxes imposed in lieu of such minimum Taxes) that are attributable to the taxable income of Lead Borrower and its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that Lead Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (B) with respect to the Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by such Unrestricted Subsidiary to a Borrower or the Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(C) customary salary, bonus and other benefits payable to officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Lead Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Lead Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Lead Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of Lead Borrower of all or substantially all of the Corporation properly applicable to the payment property and assets or business of dividendsany Person, on each Dividend Payment Dateor of assets constituting a business unit, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate line of interest payable by the Trust on the Trust Notes as business or division of such Person, or of all of the Issue Date, by (y) fourEquity Interests in a Person; provided that if an event such purchase or other acquisition had been made by Lead Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (including a redemptionA) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablesuch dividend, the dividend payable for any partial Dividend Periods distribution, loan or advance shall be equal made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Lead Borrower or any Restricted Subsidiary or (2) the merger (to the product obtained extent permitted in Section 10.02) into Lead Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(G) any customary fees and expenses related to any unsuccessful equity offering by multiplying any Parent Company directly attributable to the amount operations of Lead Borrower and its Restricted Subsidiaries;
(vii) reasonable and customary indemnities to directors, officers and employees of Holdings or any other Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Lead Borrower and its Restricted Subsidiaries;
(viii) Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of (x) above by a fraction, obligations under or in respect of director and officer insurance policies to the numerator of which is the actual number of days extent reasonably attributable to the partial ownership or operation of Lead Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend Period used (i) to fund the Transaction, including Transaction Costs, and (ii) in order to satisfy deferred purchase price, earn-outs and contingent payments in respect of any amounts due and owing as provided for in the Acquisition Agreement;
(x) Lead Borrower may pay cash Dividends to Holdings (who may subsequently pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v), 10.06(vii) and 10.06(xii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date, not to exceed, in any fiscal year, the greater of (x) 5% of such Parent Company’s market capitalization and (y) 6% of the net cash proceeds contributed to the capital of Lead Borrower from any such Initial Public Offering;
(xiii) any Dividends to the extent the same are made solely with the Available Amount, so long as, solely to the extent clause (a)(i)(B) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 5.20:1.00;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by Lead Borrower and the denominator Guarantors; provided that the aggregate amount of which is 365such purchases, subject when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $11,250,000 and 1.00% of Consolidated Total Assets (measured at the time of such Dividend);
(xv) the declaration and payment of Dividends or the payment of other distributions by Lead Borrower in an aggregate amount since the Closing Date not to exceed the greater of $100,000,000 and 8.50% of Consolidated Total Assets (measured at the time of such Dividend);
(xvi) Lead Borrower and each Restricted Subsidiary may declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case to any applicable withholding tax. If on any of Dividend Payment Date the dividend payable on such date is not paid in full on all or other distribution by a Restricted Subsidiary, Lead Borrower or a Restricted Subsidiary receives at least its pro rata share of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or distribution;
(xvii) Lead Borrower may pay Dividends with the unpaid part thereof cash proceeds contributed to its common equity from the net cash proceeds of any equity issuance by any Parent Company, so long as, with respect to any such payments, no Event of Default shall have occurred and be paid continuing or would result therefrom; provided that the amount of any such cash proceeds that are utilized for any Dividend under this clause (xvii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”;
(xviii) Lead Borrower and any Restricted Subsidiary may pay Dividends within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03; and
(xix) any Dividends, so long as on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicablePro Forma Basis, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities as of the Corporationlast day of the most recently ended Test Period, the Consolidated Total Net Leverage Ratio does not exceed 3.70:1.00. In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the definitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall, to the payment of the same. The holders of the Deferral Preferred Sharesextent such loan or advance remains unpaid, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required deemed to be deducted) and payment thereof shall satisfy such dividendscash Dividends paid to Holdings to the extent provided in said Section 10.05(vi).
Appears in 2 contracts
Samples: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp), First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that:
(a) any Subsidiary of a Borrower (i) may pay cash Dividends to a Borrower or any Wholly Owned Subsidiary of a Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary of a Borrower, may pay cash Dividends to its shareholders generally so long as the Borrower or its 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Deferral Preferred Sharesvarious classes of equity interests in such Subsidiary);
(b) so long as no Default exists or would result therefrom, Series-[·] BearingPoint may repurchase outstanding shares of its common stock (or options to purchase such common stock) following the death, disability, retirement or termination of employment of employees, officers or directors of any Company; provided that (i) all amounts used to effect such repurchases are obtained by BearingPoint from a substantially concurrent issuance of its common stock (or options to purchase such common stock) to other employees, members of management, executive officers or directors of any Company or (ii) to the extent the proceeds used to effect any repurchase pursuant to this clause (ii) are not obtained as described in preceding clause (i), (x) Borrowing Availability for the 60 days prior to the date that any such Dividend is paid shall be entitled not less than $25.0 million, (y) projected Borrowing Availability for the 60 days after the date that any such Dividend is paid shall be not less than $25.0 million based on projections presented by BearingPoint to receive the Administrative Agent and reasonably satisfactory to the Corporation Administrative Agent and (z) the aggregate amount of Dividends paid by BearingPoint pursuant to this paragraph (b) (exclusive of amounts paid as described pursuant to preceding clause (i)) shall not exceed $1.0 million in any fiscal year of BearingPoint;
(c) so long as no Default exists or would result therefrom, BearingPoint may pay thereonDividends, in an amount not to exceed during any fiscal year, $5.0 million less any amounts paid during such fiscal year pursuant to Section 6.06(e), pursuant to and in accordance with stock option plans or other benefit plans or arrangements for directors, officers or employees of BearingPoint or its Subsidiaries;
(d) so long as and when declared by no Default exists or would result therefrom, BearingPoint may repurchase its capital stock upon exercise of options or warrants solely to the board extent that shares of directors out such capital stock represent a portion of the monies exercise price of such options or warrants and no cash is tendered or paid by BearingPoint in connection therewith;
(e) so long as no Default exists or would result therefrom, BearingPoint may make cash payments, in an amount not to exceed during any fiscal year, $5.0 million less any amounts paid during such fiscal year pursuant to Section 6.06(c), in lieu of the Corporation properly applicable issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of BearingPoint;
(f) (i) after such time as the Foreign Cash Repatriation shall have occurred, (ii) after such time as BearingPoint shall have made the Satisfactory Public Filings other than its Form 10-Q filing for the quarter ended September 30, 2005, (iii) after the Closing Date and prior to January 1, 2006, (iv) so long as no Default exists or would result therefrom, and (v) as long as Consolidated EBITDA for the month of July 2005 is equal to at least $13.4 million and Consolidated EBITDA for the month of August 2005 is equal to at least $31.5 million (in each case, such calculation of Consolidated EBITDA to be certified by delivery of an Officer’s Certificate to the payment of dividendsAdministrative Agent with such accompanying detail as to such calculation as the Administrative Agent shall reasonably request), on each Dividend Payment DateBearingPoint may make cash payments after the Closing Date and prior to January 1, fixed cumulative preferential cash dividends equal 2006 to the quotient obtained by dividing: repurchase its capital stock or to repurchase and retire outstanding Indebtedness in an amount not to exceed (x) the product obtained by multiplying lower of (A) $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as 5.0 million and (B) 50% of the Issue Dateamount of cash in excess of $65.0 million that has been repatriated by Foreign Subsidiaries to deposit accounts subject to a Deposit Account Control Agreement of BearingPoint in the United States after the Closing Date and prior to January 1, by 2006, less (y) fourthe amount of Indebtedness which is incurred by Foreign Subsidiaries from the Loan Parties pursuant to Section 6.01(f)(iv), less (z) the amount of equity Investments made by the Loan Parties in Foreign Subsidiaries pursuant to Section 6.04(q)(ii); provided that if an event and
(including a redemptiong) (i) after such time as the Foreign Cash Repatriation shall occur that results in accrued have occurred, (ii) after such time as BearingPoint shall have made the Satisfactory Public Filings, (iii) after December 31, 2005, (iv) so long as no Default exists or would result therefrom, and unpaid dividends (v) as long as the Consolidated Fixed Charge Coverage Ratio for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods BearingPoint shall be equal greater than 1.25 to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case 1.0 as to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Sharespayment made prior to September 1, Series-[·] then issued 2006, and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates greater than 1.50 to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled 1.0 as to any dividends other than payment made on or after September 1, 2006, both before giving effect thereto and pro forma after giving effect thereto, BearingPoint may make cash payments in excess an aggregate amount not to exceed $35,000,000 during the term of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer this Agreement to repurchase its capital stock or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) repurchase and payment thereof shall satisfy such dividendsretire outstanding Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Bearingpoint Inc), Credit Agreement (Bearingpoint Inc)
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that:
(a) any Subsidiary of a Borrower (i) may pay cash Dividends to such Borrower or any Wholly Owned Subsidiary of such Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary of such Borrower, may pay cash Dividends to its shareholders generally so long as such Borrower or its 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Deferral Preferred Sharesvarious classes of equity interests in such Subsidiary);
(b) so long as no Default exists or would result therefrom, Series-[·] shall be entitled Borrowers may pay Dividends to receive Holdings for the purpose of enabling Holdings to, and Holdings may, repurchase outstanding shares of its common stock (or options to purchase such common stock) following the Corporation shall pay thereondeath, as and when declared by the board disability, retirement or termination of employment of employees, officers or directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fourany Company; provided that if an event (i) all amounts used to effect such repurchases are obtained by Holdings from a substantially concurrent issuance of its common stock (or options to purchase such common stock) to other employees, members of management, executive officers or directors of any Company or (ii) to the extent the proceeds used to effect any repurchase pursuant to this clause (ii) are not obtained as described in preceding clause (i), the aggregate amount of Dividends paid by Holdings to its stockholders pursuant to this paragraph (b) (exclusive of amounts paid as described pursuant to preceding clause (i)) shall not exceed $1.0 million in any fiscal year of Holdings;
(c) Borrowers may pay cash Dividends to Holdings for the purpose of paying, so long as all proceeds thereof are promptly used by Holdings to pay, its franchise taxes and operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including legal and accounting expenses and similar expenses and customary fees to non-officer directors of Holdings);
(d) Borrowers and Subsidiaries may pay cash Dividends to Holdings for the purpose of paying, so long as all proceeds thereof are promptly used by Holdings to pay, its income tax when and as due; and
(e) On the Closing Date, D 56 may pay a redemption) shall occur that results cash Dividend in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or Acquisition Consideration to effect the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsAcquisition.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Department 56 Inc), Revolving Credit Agreement (Department 56 Inc)
Dividends. The holders Company will not, nor will it permit any Subsidiary to, declare or pay any Dividends, except that:
(a) Any Wholly-Owned Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Company may pay Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Company or any Wholly-Owned Subsidiary of the monies Company and (b) any Subsidiary that is not a Wholly-Owned Subsidiary may pay Dividends to its shareholders generally so long as the Company or its respective Subsidiary which owns the Equity Interest 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 Corporation properly applicable various classes of Equity Interests in such Subsidiary).
(ii) So long as there shall exist no Default or Unmatured Default (both before and after giving effect to the payment thereof), the Company may repurchase outstanding shares of dividendsits common stock (or options to purchase such common stock) following the death, on each Dividend Payment Datedisability, fixed cumulative preferential cash dividends equal retirement or termination of employment of employees, officers or directors of the Company or any of its Subsidiaries; provided that (a) all amounts used to effect such repurchases are obtained by the Company from a substantially concurrent issuance of its common stock (or options to purchase such common stock) to other employees, members of management, executive officers or directors of the Company or any of its Subsidiaries or (b) to the quotient extent the proceeds used to effect any repurchase are not obtained as described in preceding clause (a), the aggregate amount of Dividends paid by dividing: the Company pursuant to this Section 6.10(ii) (xexclusive of amounts paid as described pursuant to preceding clause (a)) shall not exceed $1,000,000 in any fiscal year of the product obtained Company; provided that, in the event that the maximum amount which is permitted to be expended in respect of Dividends during any fiscal year pursuant to this clause (b) is not fully expended during such fiscal year, the maximum amount which may be expended during the immediately succeeding fiscal year pursuant to this clause (b) shall be increased by multiplying $1,000 by a rate per annum equal such unutilized amount.
(iii) So long as there shall exist no Default or Unmatured Default (both before and after giving effect to the rate payment thereof), the Company may repurchase outstanding shares of interest payable its common stock or equivalents thereof or rights to purchase any of the foregoing issued in connection with the Company’s directors compensation plan; provided that the aggregate amount of shares repurchased paid by the Trust Company pursuant to this Section 6.10(iii) (exclusive of amounts paid as described pursuant to Section 6.10(ii)) shall not exceed $750,000 in any fiscal year and shall not exceed a maximum of $1,750,000 for all such repurchases made on or after the Trust Notes Closing Date.
(iv) So long as there shall exist no Default or Unmatured Default (both before and after giving effect to the declaration and payment thereof), the Company may pay Dividends with respect to its outstanding common stock, provided that (i) no Dividend shall be declared or paid during any fiscal year unless the Senior Leverage Ratio, determined as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all end of the Deferral Preferred Sharesimmediately preceding fiscal year, Series-[·] then issued was less than 2.50 to 1, and outstanding, (ii) the aggregate amount of such dividend Dividends declared or the unpaid part thereof paid during any fiscal year shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities not exceed 25% of the Corporation, to the payment positive Consolidated Net Income of the same. The holders of Company and its Subsidiaries for the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsimmediately preceding fiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Dividends. The holders Parent may pay dividends (or make any other distributions to its shareholders), buy-back its own common stock and/or make new material investments in any company, shares, common stock or enter into any kind of the Deferral Preferred Sharesnew forward contracts (including total return swaps), Series-[·] shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable only to the payment of dividendsextent that no Default is continuing or would result from the proposed transaction, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal and after giving effect to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablesuch transaction, the dividend payable for Parent and its Subsidiaries are in compliance with the Financial Covenants set out in Clause 22 (Financial Covenants) of this Agreement. To the extent the Parent has issued preference capital, any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in mandatory yield (xinterest) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable payments on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] preference capital shall not be entitled treated as dividend (or other distribution to its shareholders) for the purpose of this Clause 23.14. If an Event of Default has occurred and is continuing, Seadrill Xxxx and Seadrill Gulf Xxxx may not pay dividends (or make any other distributions to its shareholders) or buy-back its own common stock. None of the Borrowers or Intra-Group Charterers shall incur, create or permit to subsist any Financial Indebtedness. The restrictions in paragraph (a) above do not apply to; Financial Indebtedness incurred pursuant to the Finance Documents; intercompany loans and advances on the conditions that the loans or advances are subordinated and unsecured in a form and substance satisfactory to the Agent; or Financial Indebtedness incurred by an Intra-Group Charterer by way of guarantees provided by such Intra-Group Charterer in relation to any dividends other than financing of a vessel or rig in excess the Group. For the avoidance of doubt, the cumulative preferential cash dividends hereinbefore providedrestrictions on Financial Indebtedness in Clause 23.15 (a) shall not apply to Seadrill Capricorn, unless it becomes or accedes to the position of a Borrower or an Intra-Group Charterer. Payment Each Obligor shall be (and shall procure that each Subsidiary will) procure that all transactions entered into with an Affiliate are made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) market terms and payment thereof shall satisfy such dividendsotherwise on arm’s length terms.
Appears in 2 contracts
Samples: Senior Secured Credit Facility Agreement, Senior Secured Credit Facility Agreement (Seadrill Partners LLC)
Dividends. The holders Without the prior written consent of the Deferral Preferred SharesRequired Lenders, Series-[·] Borrower shall be entitled not take or permit any Subsidiary to receive and the Corporation shall pay thereon, as and when declared by the board of directors out take any of the monies following actions: (a) declare or pay any dividends, (b) purchase, redeem, retire or otherwise acquire for value any of its capital stock now or hereafter outstanding, or make any distribution of assets to its stockholders as such whether in cash, assets or in obligations of the Corporation properly applicable to Borrower or any Subsidiary, (c) allocate or otherwise set apart any sum for the payment of dividendsany dividend or distribution on, on each Dividend Payment Dateor for the purchase, fixed cumulative preferential cash dividends equal redemption or retirement of any shares of its capital stock, or (d) make any other distribution by reduction or return of capital or otherwise in respect of any shares of its capital stock or permit any Subsidiary to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as purchase or otherwise acquire for value any stock of the Issue DateBorrower or another Subsidiary, by except that:
(yi) fourBorrower may declare and deliver dividends and make distributions (A) in an amount not to exceed $6,000,000 in the aggregate in any fiscal year (the “Dividend Limit”) and/or (B) payable solely in common stock of Borrower; provided that if an event (including a redemption) that, in each case, no Event of Default or Potential Default shall occur that results in accrued and unpaid dividends for as a partial Dividend Period becoming payableresult of, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to exist immediately following the payment of any dividends or distributions under this clause (i);
(ii) Borrower may repurchase or otherwise acquire shares of its capital stock, provided that (A) each such repurchase is at a price not exceeding the same. The holders then current market price and (B) the aggregate number of the Deferral Preferred Shares, Series-[·] shares repurchased shall not be entitled exceed 5,700,000 from the Closing Date through the Revolving Credit Loan Maturity Date, with the balance of such amount concurrently adjusted for any stock splits, reverse stock splits and similar events and (C) no Event of Default or Potential Default shall occur as a result of, or exist immediately following, such repurchase or acquisition;
(iii) Any Subsidiary may declare and deliver dividends or other distributions directly to any dividends Loan Party other than or in excess any Inactive Subsidiary; and
(iv) any Foreign Subsidiary of the cumulative preferential cash CTG Europe may declare and deliver dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsCTG Europe.
Appears in 2 contracts
Samples: Loan Agreement (Computer Task Group Inc), Loan Agreement (Computer Task Group Inc)
Dividends. The Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the following shall be permitted (it being understood that for purposes of determining compliance with or availability of any of the following exceptions any Investment made in reliance on Section 6.03(r) shall be treated as a Dividend):
(a) Dividends by any Company to Borrower, any Guarantor or any Restricted Subsidiary, provided that in the case of a Subsidiary that is not a Wholly Owned Subsidiary, such Dividends shall be made pro rata (or on terms more favorable to Borrower or any other applicable Loan Party or, if neither Borrower nor any other Loan Party holds an Equity Interest in such Subsidiary, on terms more favorable to any other Subsidiary of Borrower, in each case, than to the other holders of such Subsidiary’s Equity Interests) to the Deferral Preferred Sharesholders of such Subsidiary’s Equity Interests, Series-[·] shall be entitled taking into account the relative preferences, if any, on the various classes of Equity Interests of such Subsidiary;
(b) Dividends, directly or indirectly, to receive Borrower or Parent to permit Borrower or Parent, and the Corporation shall pay thereonsubsequent use of such payments by Borrower or Parent, to repurchase or redeem Qualified Capital Stock of Borrower or Parent, as and when declared applicable, held by officers, directors, employees or consultants or former officers, directors, employees or consultants (or their transferees, estates or beneficiaries under their estates) of Parent, Borrower or any of its Subsidiaries upon death, disability, retirement, severance or termination of employment or service or pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) or to make payment on promissory notes issued to pay the board of directors out of the monies of the Corporation properly applicable purchase price with respect to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) foursuch repurchases or redemptions; provided that if an event (including a redemption) the aggregate cash consideration paid for all such redemptions and payments shall occur that results not exceed, in accrued and unpaid dividends for a partial Dividend Period becoming payableany fiscal year, the dividend payable for sum of (i) $7.0 million (plus any partial Dividend Periods shall amount not used in any fiscal year may be equal carried forward to the product obtained by multiplying next two succeeding fiscal years), plus the sum of (ii) the amount of any Net Cash Proceeds received by or contributed to Borrower from the issuance and sale since the issue date of Qualified Capital Stock of Borrower or Parent, in each case, to officers, directors or employees of Parent, Borrower or any of its Subsidiaries that have not been used to make any repurchases, redemptions or payments under this clause (xb), (iii) above by the Net Cash Proceeds of any “key-man” life insurance policies of Borrower and any of its Restricted Subsidiaries that have not been used to make any repurchases, redemptions or payments under this clause (b) and (iv) amounts that are contemporaneously repaid to Borrower or a fraction, the numerator Subsidiary in respect of which is the actual number of days attributable loans made pursuant to Section 6.03(d);
(c) (A) to the partial Dividend Period extent actually used by Parent to pay such taxes, costs and the denominator of which is 365expenses, subject in each case Dividends, directly or indirectly, by Borrower to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of Parent in an amount sufficient to permit Parent to pay franchise taxes and other fees required to maintain the Corporation payable legal existence of Parent and (B) to the extent actually used by Parent to pay such costs and expenses, Dividends, directly or indirectly, by Borrower to or on behalf of Parent in lawful money an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Parent, in the case of clauses (A) and (B) in an aggregate amount not to exceed $5.0 million in any fiscal year;
(d) Permitted Tax Distributions by Borrower to Parent, so long as Parent uses such distributions to pay its taxes;
(e) payments resulting from the cashless exercise of options and warrants on the Equity Interests of any Company;
(f) Dividends by Borrower to Parent to make payments permitted pursuant to Sections 6.07(c) and (e);
(g) cash payments in lieu of the United States issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in Borrower;
(less h) Dividends to Parent to finance any tax required Investment permitted to be deductedmade pursuant to Section 6.03 if such Investment were made by Borrower; provided that (i) such Dividend shall be made substantially concurrently with the closing of such Investment and (ii) Parent shall, immediately following the closing thereof, cause (A) all property acquired (whether assets or Equity Interests) to be contributed as equity to Borrower or a Restricted Subsidiary or (B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.04) of the person formed or acquired into Borrower or a Restricted Subsidiary in order to consummate an Investment in each case, in accordance with the requirements of Section 5.10;
(i) Dividends to redeem (or to permit Parent to redeem) in whole or in part any of its Equity Interests (“Retired Capital Stock”)for another class of its (or Parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests (“Refunding Capital Stock”); provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) Dividends payable solely in the Equity Interests of such person;
(j) any Dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; and
(k) additional Dividends in an amount not to exceed the Available Amount at the time thereof so long as prior to and after giving effect to the payment thereto, (i) no Default or Event of Default shall satisfy have occurred and be continuing and (ii) the Consolidated Leverage Ratio determined on a Pro Forma Basis shall be at least 4.25:1.00;
(l) the payment of Dividends on Borrower’s common Equity Interest of up to 6% per annum of the Net Cash Proceeds received by Borrower in any public offering, other than public offerings with respect to Borrower’s common Equity Interest registered on Form S-8; provided that (i) the Available Amount shall be reduced by a corresponding amount of any such dividendsDividends and (ii) immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom. The amount of all Dividends (other than cash) will be the fair market value (as determined in good faith by Borrower) on the date of such Dividend of the assets or securities proposed to be paid, transferred or issued by Borrower or such Restricted Subsidiary, as the case may be, pursuant to such Dividend.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Bankrate, Inc.), Revolving Credit Agreement (Bankrate, Inc.)
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that:
(a) any Subsidiary of Borrower (i) may pay cash Dividends to Borrower or any Wholly Owned Subsidiary of Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary of Borrower, may pay cash Dividends to its shareholders generally so long as Borrower or its 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Deferral Preferred Sharesvarious classes of equity interests in such Subsidiary);
(b) so long as no Default exists or would result therefrom, Series-[·] shall be entitled Borrower may pay Dividends to receive and Parent in order to enable Parent to repurchase outstanding shares of its capital stock (or options to purchase such capital stock) following the Corporation shall pay thereondeath, as and when declared disability, retirement or termination of employment of employees, officers or directors of any Company or upon the exercise by the board any such person of directors out any “put” right in respect of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: any such capital stock (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fouror options); provided that if the aggregate amount of Dividends paid by Borrower pursuant to this paragraph (b) shall not exceed an event aggregate amount of $3.0 million (exclusive of any amounts repaid to Borrower concurrently therewith in respect of loans made pursuant to Section 6.03(j);
(c) Borrower may pay cash Dividends to Parent, so long as all proceeds thereof are promptly used by Parent to pay its franchise taxes and operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including a redemptionlegal and accounting expenses and similar expenses and customary fees to non-officer directors of Parent); provided that the aggregate amount of Dividends paid to Parent pursuant to this clause (c) shall occur that results not exceed $1.0 million in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal fiscal year of Parent;
(d) Borrower or any Subsidiary may pay cash Dividends to the product obtained by multiplying the Parent in an amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment federal and state (in such states that permit consolidated or combined tax returns) income tax liability that Borrower and the Subsidiaries would have been liable for if any of the Companies had filed their taxes on a stand-alone basis, for the purpose of paying such taxes; provided that such payments shall be made by electronic funds transfer or by cheque of or Parent no earlier than five days prior to the date on behalf of the Corporation payable in lawful money of the United States (less any tax which Parent is required to be deductedmake its payments to the Internal Revenue Service, as applicable;
(e) and payment thereof shall satisfy Borrower may pay Dividends to Parent of capital stock of Parent to the extent such dividendscapital stock of Parent is acquired by Borrower as a result of a foreclosure action following a default on an advance, loan and/or other extension of credit permitted pursuant to Section 6.03(j); and
(f) Borrower may pay Dividends to the extent permitted by Section 6.06(h).
Appears in 2 contracts
Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)
Dividends. The holders Borrower will not, and the Borrower will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled directly or indirectly, authorize, declare or pay any Dividends with respect to receive the Borrower or any Restricted Subsidiary, except that:
(i) any Restricted Subsidiary may pay Dividends to the Borrower or to any Wholly-Owned Domestic Restricted Subsidiary and the Corporation shall pay thereon, as and when declared by the board of directors out any Subsidiary of the monies Borrower that is not a Credit Party may pay Dividends to the Borrower or to any Wholly-Owned Restricted Subsidiary;
(ii) any Non-Wholly-Owned Subsidiary may pay Dividends to its shareholders, members or partners generally so long as the Borrower or a Restricted Subsidiary which owns the Equity Interests in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Corporation properly applicable Equity Interests in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);
(iii) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may repurchase, retire or otherwise acquire or retire for value common Equity Interests (or options, warrants or other rights to acquire common Equity Interests) of the Borrower (or make payments to Holdings or any Person of which the Borrower constitutes a Subsidiary to permit distributions to repurchase common Equity Interests (or options, warrants or other rights to acquire common Equity Interests thereof) of any such Person) from any future, current or former officer, director, manager or employee (or any spouses, successors, executors, administrators, heirs or legatees of any of the foregoing) of the Borrower, any of its Subsidiaries, Holdings or any Person of which the Borrower constitutes a Subsidiary of the Borrower, in an aggregate amount for all such payments, together with all payments made pursuant to Section 6.04(xxii), not to exceed $10,000,000 plus the proceeds of “key-man” life insurance policies that are used to make such redemptions or repurchases;
(iv) the Borrower or any of its Restricted Subsidiaries may pay Dividends on its Qualified Equity Interests solely through the issuance of additional shares of Qualified Equity Interests of the Borrower or such Restricted Subsidiary (but not in cash), provided that in lieu of issuing additional shares of Qualified Equity Interests as Dividends, the Borrower or such Restricted Subsidiary may increase the liquidation preference of the shares of Qualified Equity Interests in respect of which such Dividends have accrued;
(v) the Borrower may pay cash Dividends so long as (A) the aggregate amount of Dividends paid pursuant to this clause (v), plus the aggregate amount of payments made pursuant to clause (x) of Section 6.15, does not exceed $25,000,000, (B) no Default or Event of Default then exists or would result therefrom, (C) after giving effect to the payment of dividendssuch Dividend, the Total Asset Coverage Ratio shall not be less than 3.00:1.00 and the RC Asset Coverage Ratio shall not be less than 1.00:1.00, in each case, calculated on each Dividend Payment Datea Pro Forma Basis, fixed cumulative preferential cash dividends equal and (D) prior to the quotient obtained payment of such Dividend, the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying compliance with the preceding sub-clauses (A), (B) and (C) and containing the calculations (in reasonable detail) required to establish compliance with preceding sub-clause (C);
(vi) Borrower may pay Permitted Tax Distributions;
(vii) the Borrower may pay Dividends or consummate any irrevocable redemption within 60 days after the date of declaration of such Dividend or notice of such redemption if the Dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration or notice hereunder;
(viii) the Borrower may pay Dividends, either (i) through the application of net cash proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Borrower) of shares of Qualified Equity Interests of the Borrower or (ii) through the application of a substantially concurrent cash capital contribution (other than by dividing: a Subsidiary of the Borrower) received by the Borrower from its equityholders in respect of Qualified Equity Interests; provided that (x) no Event of Default then exists or would result therefrom or (y) the aggregate amount of Dividends paid pursuant to this clause (viii) shall not exceed $1,000,000;
(ix) the Borrower may pay Dividends on its Qualified Equity Interests by exchanging such Qualified Equity Interests for shares of Qualified Equity Interests of Holdings (but not, for the avoidance of doubt, in cash) in accordance with the exchange ratio for Class A units set forth in the PNMAC Limited Liability Company Agreement;
(x) the product obtained by multiplying $1,000 by a rate per annum equal Borrower may (A) repurchase Equity Interests in connection with the exercise of stock options or warrants to the rate of interest payable by the Trust on the Trust Notes as extent such Equity Interests represent a portion of the Issue Dateexercise price of those stock options or warrants and (B) repurchase Equity Interests or options to purchase Equity Interests in connection with the exercise of stock options to the extent necessary to pay applicable withholding taxes; and
(xi) the Borrower may declare and pay Dividends to, by or make loans to, Holdings or any Person of which the Borrower constitutes a Subsidiary to pay, without duplication as to amounts of:
(yA) fourfranchise taxes and other similar fees, taxes and expenses required to maintain the existence of the Borrower, Holdings and any Person of which the Borrower constitutes a Subsidiary;
(B) customary salary, bonus and other benefits payable to officers and employees of Holdings or any Person of which the Borrower constitutes a Subsidiary to the extent such salaries, bonuses and other benefits are attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; and
(C) general corporate overhead expenses and other expenses incidental to being a public company (including, without limitation, audit, listing and legal expense) of Holdings or any Person of which the Person constitutes a Subsidiary to the extent such expenses are attributable to the ownership or operation of the Person and its Restricted Subsidiaries; provided that if an event the aggregate amount of Dividends paid and loans made pursuant to this clause (including a redemptionxi) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsexceed $250,000.
Appears in 2 contracts
Samples: Credit Agreement (Pennymac Financial Services, Inc.), Credit Agreement (Pennymac Financial Services, Inc.)
Dividends. The holders of the Deferral Preferred SharesUnless a Default has occurred and is continuing, Series-[·] shall each Pledgor will be entitled to receive any and all dividends and other forms of distribution on the Pledged Collateral of such Pledgor which it is otherwise entitled to receive, but any and all stock and/or liquidating dividends, distributions of property, returns of capital or other distributions made on or in respect of the Pledged Collateral of such Pledgor, whether resulting from a subdivision, combination or reclassification of the outstanding capital stock of any Issuer or received in exchange for the Pledged Collateral of such Pledgor or any part thereof or as a result of any amalgamation, merger, consolidation, acquisition or other exchange of property to which any Issuer may be a party or otherwise, and any and all cash and other property received in exchange for any Pledged Collateral of such Pledgor, will be and become part of the Pledged Collateral of such Pledgor subject to the Charges created by this Agreement and, if received by such Pledgor, unless otherwise applied by such Pledgor in a manner expressly permitted by the Administrative Agent, will immediately be delivered to the Administrative Agent or its nominee (accompanied, if appropriate, by proper and duly executed instruments of assignment or transfer in accordance with the Administrative Agent's instructions) to be held subject to the terms of this Agreement; and if any of the Pledged Collateral of any such Pledgor has been registered in the name of the Administrative Agent or its nominee, the Administrative Agent will execute and deliver (or cause to be executed and delivered) to such Pledgor all such dividend orders and other instruments as such Pledgor may request for the purpose of enabling such Pledgor to receive the dividends or other payments which such Pledgor is authorized to receive and retain pursuant to this Section. If a Default has occurred and is continuing, all rights of any Pledgor pursuant to this Section will cease and the Corporation shall pay thereon, as Administrative Agent will have the sole and when declared exclusive right and authority to receive and retain the cash dividends and other forms of cash distribution which such Pledgor would otherwise be authorized to retain pursuant to this Section. Any money and other property paid over to or received by the board of directors out of the monies of the Corporation properly applicable Administrative Agent pursuant to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any this Section will be retained by the Administrative Agent as additional Pledged Collateral of the applicable law Pledgor and under be applied in accordance with the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsthis Agreement.
Appears in 2 contracts
Samples: Master Securities Pledge Agreement (Hollinger Inc), Master Securities Pledge Agreement (Hollinger Inc)
Dividends. The holders Lead Borrower will not, and will not permit any of its Restricted Subsidiaries to, authorize, declare or pay any Dividends with respect to the Lead Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of the Deferral Preferred SharesLead Borrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to the Lead Borrower or to other Restricted Subsidiaries of the Lead Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of the Lead Borrower may declare and pay cash Dividends to its shareholders generally so long as the Lead Borrower or its Restricted 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, Series-[·] shall be entitled if any, of the various classes of Equity Interests of such Subsidiary);
(iii) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, the Lead Borrower may pay cash Dividends to receive Holdings to allow Holdings to pay cash dividends to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of such Parent Company from current or former members of management, employees, consultants, officers and directors (and their successors and assigns) of the Lead Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by the Lead Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings in respect of all such Equity Interests so redeemed or repurchased shall pay thereonnot (net of any cash proceeds received by Holdings (but in no event from any Initial Public Offering) from issuances of its Equity Interests and contributed to the Lead Borrower in connection with such redemption or repurchase), as and when declared in either case, exceed during any fiscal year of the Lead Borrower, $10,000,000 (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by the board Lead Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to the Lead Borrower; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to the Lead Borrower from current or former members of management, officers, directors, employees of the Lead Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of any Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to the Lead Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and any other Parent Company shall cause the amount of such expenses to be repaid to the Lead Borrower or the relevant Restricted Subsidiary of the Lead Borrower out of the monies proceeds of such offering promptly if such offering is completed;
(v) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) the Lead Borrower may pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence;
(B) with respect to any taxable year (or portion thereof) ending after the Closing Date with respect to which the Lead Borrower (a) is treated as a corporation for U.S. federal, state, and/or local income tax purposes and (b) is a member of a consolidated, combined or similar income tax group (a “Tax Group”) of which any Parent Company or other entity is the common parent, federal, state and local income Taxes (including minimum Taxes) (or franchise and similar Taxes imposed in lieu of such minimum Taxes) that are attributable to the taxable income of the Corporation properly applicable Lead Borrower and its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Lead Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (B) with respect to the Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by such Unrestricted Subsidiary to the Lead Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(C) customary salary, bonus and other compensation and benefits payable to current and former officers, directors, consultants and employees of any Parent Company to the extent such salaries, bonuses and other compensation and benefits are reasonably attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of the Lead Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Lead Borrower or any Parent Company;
(F) the purchase or other acquisition by any parent of the Lead Borrower of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if such purchase or other acquisition had been made by the Lead Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (A) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to the Lead Borrower or any Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.02) into the Lead Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchaser or other acquisition;
(G) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company directly attributable to the operations of the Lead Borrower and its Restricted Subsidiaries;
(vii) reasonable and customary indemnities to directors, officers and employees of any Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of the Lead Borrower and its Restricted Subsidiaries;
(viii) the Lead Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal (x) obligations under or in respect of director and officer insurance policies to the quotient obtained by dividing: extent reasonably attributable to the ownership or operation of the Lead Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement (as in effect on the Closing Date);
(ix) any Dividend used to fund the Transaction, including Transaction Costs and the Special Dividend, and any Dividend from proceeds received in connection with any working capital adjustment pursuant to the Acquisition Agreement;
(x) the product obtained by multiplying $1,000 by Lead Borrower may pay cash Dividends to Holdings (who may subsequently pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v) and 10.06(vii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or the settlement or vesting of other equity incentive awards;
(xii) a rate Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date, of up to 6% per annum equal of the net cash proceeds contributed to the rate capital of interest payable the Lead Borrower from any such Initial Public Offering;
(xiii) the Lead Borrower may pay any Dividends so long as the Distribution Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Dividends;
(xiv) purchases of minority interests in non-Wholly-Owned Subsidiaries by the Trust on Lead Borrower and the Trust Notes as of the Issue Date, by (y) fourGuarantors; provided that if the aggregate amount of such purchases, when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed $5,000,000;
(xv) the declaration and payment of dividends or the payment of other distributions by the Lead Borrower in an event aggregate amount since the Closing Date not to exceed $35,000,000 (including less any amounts used Section 10.07(a)(B)(ii) and Section 10.07(b)(ii));
(xvi) the Lead Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case of dividend or other distribution by a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payableRestricted Subsidiary, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by Lead Borrower or a fraction, the numerator Restricted Subsidiary receives at least its pro rata share of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or distribution;
(xvii) the unpaid part thereof Lead Borrower may make payments with the cash proceeds contributed to its common equity from the net cash proceeds of any equity issuance by any Parent Company, so long as, with respect to any such payments, no Event of Default shall have occurred and be continuing or would result therefrom and provided such payments are made substantially contemporaneously with the receipt of such cash proceeds by the Lead Borrower; and
(xviii) the Lead Borrower and any Restricted Subsidiary may pay dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03. In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the definition of Consolidated EBITDA and Consolidated Net Income), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall be paid on a subsequent date or dates deemed to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, cash Dividends paid to Holdings to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or extent provided in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendssaid Section 10.05(vi).
Appears in 2 contracts
Samples: Revolving Credit Agreement (PAE Inc), Revolving Credit Agreement (PAE Inc)
Dividends. The holders Holdings will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled pay any Dividends with respect to receive Holdings or any of the Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of Holdings may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Holdings or to other Restricted Subsidiaries of Holdings which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Holdings may declare and pay cash Dividends to its shareholders generally so long as Holdings or its Restricted 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) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Holdings may pay cash Dividends to any Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of such Parent Company from management, employees, officers and directors (and their successors and assigns) of Holdings and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fourRestricted Subsidiaries; provided that if an event (including a redemptionA) the aggregate amount of Dividends made by Holdings pursuant to this clause (iii), and the aggregate amount paid by such Parent Company in respect of all such Equity Interests so redeemed or repurchased shall not (net of any cash proceeds received by Holdings from issuances of its Equity Interests (other than to the extent included in the Available Amount) in connection with such redemption or repurchase), in either case, exceed during any fiscal year of Holdings, the greater of $44,300,000 and 10.0% of LTM Consolidated EBITDA (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying increase the amount of cash Dividends permitted to be paid in the succeeding two (x2) above fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by a fractionan amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Holdings or any of the Restricted Subsidiaries after the Amendment and Restatement Effective Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings or of any Parent Company which net proceeds are contributed to Holdings, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to members of management, managers, directors or consultants of any applicable withholding tax. If on Parent Company or any of its Subsidiaries that occurs after the Amendment and Restatement Effective Date; provided that the amount of any such net proceeds that are utilized for any Dividend Payment under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Holdings from members of management, officers, directors, employees of Holdings or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Holdings may pay cash Dividends to any Parent Company to pay expenses incurred by any Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to Holdings, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as such Parent Company shall cause the amount of such expenses to be repaid to Holdings or the relevant Restricted Subsidiary of Holdings out of the proceeds of such offering promptly if such offering is completed;
(v) Holdings may pay cash Dividends to any Parent Company to pay costs (including all professional fees and expenses) incurred by such Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) for any taxable period in which (a) Holdings and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar U.S. federal, state, local and/or foreign income or similar tax group whose common parent is a Parent Company (a “Tax Group”) or (b) Holdings is a pass-through entity for U.S. federal income tax purposes that is owned by a Parent Company that is a corporation for U.S. federal income tax purposes (directly or indirectly through one or more corporate subsidiaries of such Parent Company (any such corporate subsidiaries, together with such Parent Company, the “Corporate Owners”)), Holdings may make distributions to any Parent Company to pay any consolidated, combined, unitary or similar U.S. federal, state, local and/or foreign income or similar income Taxes of such Tax Group, as applicable, or to any Corporate Owner to pay the U.S. federal, state, local and/or foreign income or similar Taxes of such Corporate Owner, in each case that are attributable to the taxable income of Holdings and/or its applicable Subsidiaries, as applicable; provided that (A) the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that Holdings and/or its applicable Subsidiaries would have been required to pay in respect of such taxable period if such entity(ies) were a stand-alone corporate taxpayer or stand-alone corporate tax group consisting only of Holdings and/or such Subsidiaries for all relevant taxable periods, (B) the portion of any payment otherwise permitted pursuant to this clause (vi) with respect to any Taxes attributable to the income of any Unrestricted Subsidiary shall be limited to the amount actually paid by such Unrestricted Subsidiary to Holdings or any Credit Party for the purposes of paying such Taxes, and (C) with respect to any taxable period (or portion thereof) ending prior to the Amendment and Restatement Effective Date, payments pursuant to this clause (vi) shall be permitted only to the extent relating to Tax adjustments that arise after the Amendment and Restatement Effective Date as a result of audits or other Tax proceedings;
(vii) Holdings may pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the dividend equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings and the Restricted Subsidiaries;
(B) customary salary, bonus and other benefits payable on to officers and employees of any Parent Company to the extent such date is not paid salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Holdings and the Restricted Subsidiaries;
(C) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Holdings and the Restricted Subsidiaries (including, for the avoidance of doubt, administrative costs and expenses of Satelles, Inc., Syncom-Iridium Holdings Corp. and/or Iridium Blocker-B. Inc.);
(D) cash payments in full on lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any Parent Company;
(E) for the purchase or other acquisition by any Parent Company of all or substantially all of the Deferral Preferred Sharesproperty and assets or business of any Person, Series-or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that (1) if such purchase or other acquisition had been made by Holdings, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14, (2) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (3) such Parent Company shall, immediately following the closing thereof, cause (x) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Holdings or any Restricted Subsidiary or (y) the merger (to the extent permitted in Section 10.02) into Holdings or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(F) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company reasonably attributable to the operations of Holdings and the Restricted Subsidiaries; provided that the aggregate amount of Dividends made pursuant to subclauses (B), (C) and (F) of this clause (vii) shall not exceed the greater of $44,300,000 and 10.0% of LTM Consolidated EBITDA (measured at the time of such Dividend) in any fiscal year;
(viii) reasonable and customary indemnities to directors, officers and employees of any Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Holdings and the Restricted Subsidiaries;
(ix) Holdings may pay cash Dividends to any Parent Company for payment of obligations under or in respect of director and officer insurance policies to the extent reasonably attributable to the ownership or operation of Holdings and the Restricted Subsidiaries;
(x) [·] reserved];
(xi) Holdings may pay cash Dividends to any Parent Company so long as the proceeds thereof are used to pay fees, expenses and indemnification payments that are then issued permitted to be paid pursuant to Sections 10.06(vii) and outstanding10.06(xii);
(xii) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xiii) a Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock, not to exceed, in any fiscal year, 5.0% of such Parent Company’s Market Capitalization;
(xiv) any Dividends to the extent the same are made solely with the Available Amount; provided that to the extent clause (a)(i)(B) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (x) no Event of Default under Section 11.01(a) or Section 11.01(e) shall have occurred and be continuing and (y) the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 5.50:1.00;
(xv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by Credit Parties; provided that the aggregate amount of such purchases, when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $44,300,000 and 10.0% of LTM Consolidated EBITDA (measured at the time of such Dividend);
(xvi) the declaration and payment of Dividends or the payment of other distributions by Holdings, so long as the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 4.00:1.00 and no Event of Default shall have occurred and be continuing or result therefrom;
(xvii) Holdings and each Restricted Subsidiary may declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case of Dividend or other distribution by a Restricted Subsidiary, Holdings or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution;
(xviii) Holdings may pay Dividends with the unpaid part thereof cash proceeds contributed to its common equity from the net cash proceeds of any equity issuance by any Parent Company completed after the Amendment and Restatement Effective Date, so long as, with respect to any such payments, no Event of Default under Section 11.01(a) or 11.01(e) shall have occurred and be paid continuing or would result therefrom; provided that the amount of any such cash proceeds that are utilized for any Dividend under this clause (xviii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”;
(xix) Holdings and any Restricted Subsidiary may pay Dividends within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03;
(xx) [reserved];
(xxi) Holdings and any Restricted Subsidiary may make payments and distributions to dissenting stockholders pursuant to applicable law pursuant to or in connection with a sale, consolidation, merger or transfer of Holdings and the Restricted Subsidiaries taken as a whole that complies with the terms of this Agreement, including Section 10.02 hereof;
(xxii) Holdings and any Restricted Subsidiary may declare and pay Dividends to holders of any class or series of Qualified Preferred Stock issued by a Parent Company after the Amendment and Restatement Effective Date; provided that (A) the Consolidated Fixed Charge Coverage Ratio at the time of the issuance of such Qualified Preferred Stock (calculated on a subsequent date Pro Forma Basis) is 2.00 to 1.00 or dates greater and (B) the aggregate amount of Dividends declared and paid pursuant to be determined this Section 10.03(xxii) does not exceed the net cash proceeds received by the board Parent Company and contributed to Holdings from any such sale of directors on Qualified Preferred Stock issued after the Amendment and Restatement Effective Date and contributed to Holdings; and
(xxiii) Holdings and any Restricted Subsidiary may pay Dividends in an aggregate amount not to exceed the greater of $110,750,000 and 25% of LTM Consolidated EBITDA (measured at the time of such Dividend), which may, at the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities election of the CorporationBorrower (and without duplication), be reallocated to make Investments pursuant to Section 10.05(xix). In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the definitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to any Parent Company pursuant to Section 10.05(vi) shall, to the extent such loan or advance remains unpaid, be deemed to be cash Dividends paid to such Parent Company to the extent provided in said Section 10.05(vi). For purposes of determining compliance with this Section 10.03, if the payment of Dividends would be permitted pursuant to one or more provisions described above, the same. The holders Borrower, in its sole discretion, from time to time, may classify or reclassify or divide such payment of the Deferral Preferred Shares, Series-[·] shall not be entitled to Dividends (or any dividends other than or portion thereof) in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsmanner that complies with this Section 10.03.
Appears in 2 contracts
Samples: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)
Dividends. The Declare, make or pay any Dividend Payments on any shares of any class of Capital Stock, either directly or indirectly, except that:
(a) Qualified Subsidiaries may pay Dividend Payments pro rata to the holders of their Capital Stock (giving effect to relative preferences and priorities);
(b) Borrower and its Qualified Subsidiaries may pay or make Dividend Payments or distributions to any holder of its Capital Stock in the Deferral Preferred Sharesform of additional shares of Capital Stock of the same class and type;
(c) Borrower and Holdings may make Dividend Payments so long as the proceeds thereof shall ultimately be used by Parent (or any other parent company of Holdings) to repurchase shares of Capital Stock of Parent (or any other parent company of Holdings) owned by former, Series-[·] present or future employees of Borrower or its Qualified Subsidiaries or their assigns, estates and heirs; provided that the aggregate amount of Dividend Payments made by Borrower or Holdings pursuant to this paragraph (c) shall not in the aggregate exceed (i) $2,500,000 in any fiscal year (plus any unused amount under this clause (i) not used in any previous fiscal year ending after the Closing Date, subject to the limitation in clause (ii) of this subsection) or (ii) $10,000,000 during the term of this Agreement, plus any amounts contributed to Borrower as a result of resales of such repurchased shares of Capital Stock;
(d) Holdings and Borrower may pay or make Dividend Payments or distributions during a period when such entity is treated as a partnership for federal, state or local income tax purposes and after such period, to the extent relating to the liability for such period, in an aggregate amount not to exceed the taxable income, calculated in accordance with applicable law, of such entity with regard to such period multiplied by the highest combined published federal, state and local income tax rate applicable to corporations, which rate shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable certified to the payment Administrative Agent on an annual basis (or more frequently if the tax rate changes during any annual period) by Borrower in an Officer’s Certificate of dividendsBorrower executed on its behalf by a Responsible Officer of Borrower;
(e) Holdings and its Subsidiaries may pay or make Dividend Payments or distributions to one or more indirect parent companies to enable them to pay expenses incurred in the ordinary course of business; provided that the aggregate amount of all Dividend Payments or distributions made pursuant to this subsection 8.11(e) shall not exceed $2,500,000 in any fiscal year;
(f) Borrower and Holdings may make Dividend Payments to effect on or promptly following the Closing Date: (i) the Holdings Dividend in an amount not to exceed $110,696,356 in the aggregate and (ii) the Redemption in an amount not to exceed $39,303,644 in the aggregate; and
(g) Borrower and Holdings may make Dividend Payments pursuant to this Section 8.11(g) in an aggregate amount not to exceed the Available Amount, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: so long as (x) on a pro forma basis, after giving effect to each such Dividend Payment, the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes Total Leverage Ratio as of the Issue Datemost recent fiscal quarter of Borrower for which financial statements have been delivered pursuant to subsection 7.1 would be equal to or less than 3.75:1.00, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued no Default or Event of Default exists and unpaid dividends for a partial Dividend Period becoming payable, is continuing at the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator time of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any such Dividend Payment Date the dividend payable on or would result therefrom and (z) no Subordinated Notes are outstanding at such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendstime.
Appears in 2 contracts
Samples: Credit Agreement (Atlantic Broadband Finance, LLC), Credit Agreement (Atlantic Broadband Finance, LLC)
Dividends. The Declare, make or pay any Dividend Payments on any shares of any class of Capital Stock, either directly or indirectly, except that:
(a) Qualified Subsidiaries may pay Dividend Payments pro rata to the holders of their Capital Stock (giving effect to relative preferences and priorities);
(b) Borrower and its Qualified Subsidiaries may pay or make Dividend Payments or distributions to any holder of its Capital Stock in the Deferral Preferred Shares, Series-[·] shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board form of directors out additional shares of Capital Stock of the monies same class and type;
(c) Borrower and Holdings may make Dividend Payments so long as the proceeds thereof shall ultimately be used by Parent to make repurchase shares of the Corporation properly applicable to the payment Capital Stock of dividendsParent owned by former, on each Dividend Payment Datepresent or future employees of Borrower or its Qualified Subsidiaries or their assigns, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fourestates and heirs; provided that if an event the aggregate amount of Dividend Payments made by Borrower or Holdings pursuant to this paragraph (including a redemptionc) shall occur that results not in accrued the aggregate exceed (i) $1,000,000 in any fiscal year or (ii) $5,000,000 during the term of this Agreement, plus any amounts contributed to Borrower as a result of resales of such repurchased shares of Capital Stock;
(d) so long as no Default or Event of Default exists and unpaid dividends for a partial is continuing at the time of such Dividend Period becoming payablePayments or distributions, not less than six months after the Closing Date, Holdings and Borrower may pay or make Dividend Payments or distributions to enable Holdings II to repay, in whole or in part, up to $30.0 million in aggregate principal amount of Redeemable Common Equity, plus interest thereon (or, in lieu of such interest and without duplication, the dividend payable for aggregate outstanding amount of any partial line of credit linked to and representing the fees and interest rollup component of the Redeemable Common Equity); provided that the aggregate amount of such Dividend Periods Payments or distributions shall be not exceed the Retained Amount; provided further that if on a Pro Forma Basis after giving effect to such Dividend Payments or distributions the Total Leverage Ratio is less than or equal to 5.00 to 1.00, then such Dividend Payments or distributions may exceed the product obtained by multiplying Retained Amount so long as, after giving effect to such Dividend Payments or distributions, the amount of the Available Revolving Credit Commitments is not less than $15,000,000; provided further that on a Pro Forma Basis after giving effect to such Dividend Payments or distributions, Holdings would be in compliance with subsections 8.9(A) and (xB);
(e) above by a fractionHoldings and its Subsidiaries may pay or make Dividend Payments or distributions to one or more indirect parent companies to enable them to pay expenses incurred in the ordinary course of business; provided the aggregate amount of all Dividend Payments or distributions made pursuant to this subsection 8.11(e) shall not exceed $1,000,000 in any fiscal year;
(f) Borrower may pay or make Dividend Payments or distributions to Holdings to enable Holdings to make interest payments on Holdings High Yield Notes and, following the fifth anniversary of the issue date thereof, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365Senior Discount Notes, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid as required; provided that on a subsequent date Pro Forma Basis after giving effect to such Dividend Payments or dates to distributions, Holdings would, in each case, be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deductedcompliance with subsections 8.9(A) and payment thereof shall satisfy (B); provided, further, that, in each case, no Default or Event of Default exists and is continuing at the time of such dividendsDividend Payments or distributions;
(g) Borrower may pay or make payments of Merger Consideration (as defined in the Merger Agreement); and
(h) Borrower may make or pay Dividend Payments to Holdings to enable Holdings to (i) pay its consolidated, combined or unitary Taxes or (ii) to make or pay Dividend Payments to Holdings II to enable Holdings II to pay its consolidated, combined or unitary Taxes.
Appears in 2 contracts
Samples: Credit Agreement (Language Line Costa Rica, LLC), Credit Agreement (Language Line Holdings, Inc.)
Dividends. The holders Borrower will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled authorize, declare or pay any Dividends with respect to receive Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of a Borrower may authorize, declare and pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Borrower or to other Restricted Subsidiaries of Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Borrower may authorize, declare and pay cash Dividends to its shareholders generally so long as Borrower or its Restricted 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) so long as no Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Borrower may authorize, declare and pay cash Dividends to Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall pay thereon, as and when declared not (net of any cash proceeds received by the board Holdings (but in no event from any Initial Public Offering) from issuances of directors out of the monies of the Corporation properly applicable its Equity Interests (other than to the payment extent included in the Available Amount) and contributed to Borrower in connection with such redemption or repurchase), in either case, exceed during any fiscal year of dividendsBorrower, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying greater of $1,000 by a rate per annum equal to 75,000,000 and 6.25% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the rate most recently ended Test Period (measured at the time of interest payable by the Trust on the Trust Notes as of the Issue Date, by such Dividend) or (y) foursubsequent to the consummation of any Initial Public Offering of common stock or other comparable equity interests of Borrower or any direct or indirect parent of Borrower, the greater of $120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(iii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Borrower from members of management, officers, directors, employees of Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and any other Parent Company shall cause the amount of such expenses to be repaid to Borrower or the relevant Restricted Subsidiary of Borrower out of the proceeds of such offering promptly if such offering is completed;
(v) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with Requirements of Law, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) Borrower may authorize, declare and pay cash Dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, Borrower and its Restricted Subsidiaries;
(B) with respect to any period where Borrower or any of its Subsidiaries is a member of a consolidated, combined or similar income Tax group for U.S. federal and/or applicable state, local or foreign income or similar Tax purposes of which a direct or indirect parent of Borrower is the common parent or other applicable taxpayer, the portion of any U.S. federal, state, local and/or foreign income and similar Taxes (including any alternative minimum taxes) of such Tax group that is attributable to the taxable income of Borrower and/or its applicable Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries for such purpose, in amounts required to pay any such Taxes that are attributable to the taxable income of such Unrestricted Subsidiaries; provided that the aggregate amount of such payments with respect to such period (regardless of when paid) shall not exceed the aggregate amount of such Taxes that Borrower and/or its applicable Restricted Subsidiaries (and, subject to the limitation described above, any applicable Unrestricted Subsidiaries of Borrower) would have been required to pay with respect to such period were such entities stand-alone corporate taxpayers or a stand-alone corporate tax group for all applicable taxable periods ending after the Closing Date taking into account any applicable limitations on the ability to utilize net operating loss carryforwards and similar tax attributes under the Code;
(C) customary salary, bonus and other benefits payable to directors, officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of Borrower of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if an event such purchase or other acquisition had been made by Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (including a redemptionA) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablesuch dividend, the dividend payable for any partial Dividend Periods distribution, loan or advance shall be equal made concurrently with the closing of such purchase or other acquisition and (B) such Parent Company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Borrower or any Restricted Subsidiary or (2) the merger (to the product obtained extent permitted in Section 10.02) into Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(G) any customary fees and expenses related to any unsuccessful equity offering by multiplying any Parent Company directly attributable to the amount operations of Borrower and its Restricted Subsidiaries;
(vii) Borrower and its Restricted Subsidiaries may give reasonable and customary indemnities to directors, officers and employees of Holdings or any other Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Borrower and its Restricted Subsidiaries;
(viii) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of (x) above by a fraction, obligations under or in respect of director and officer insurance policies to the numerator of which is the actual number of days extent reasonably attributable to the partial ownership or operation of Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend Period used (x) to fund the Transaction, including Transaction Costs, and (y) in order to satisfy deferred purchase price, earn-outs and contingent payments in respect of any amounts due and owing as provided for in the Acquisition Agreement;
(x) Borrower may authorize, declare and pay cash Dividends to Holdings (who may subsequently authorize, declare and pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v), 10.06(vii) and 10.06(xii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend (including to any Parent Company) to fund a payment of dividends on Borrower’s or any Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date, not to exceed, in any fiscal year, 6.0% of the net cash proceeds contributed to the capital of Borrower from any such Initial Public Offering;
(xiii) any Dividends to the extent the same are made solely with the Available Amount, so long as, solely to the extent clause (a)(ii) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated First Lien Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 3.10:1.00;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by Borrower and the denominator Guarantors; provided that the aggregate amount of which is 365such purchases, subject when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $60,000,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend);
(xv) the authorization, declaration and payment of Dividends or the payment of other distributions by Borrower in an aggregate amount since the Closing Date not to exceed the greater of $250,000,000 and 25.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend);
(xvi) Borrower and each Restricted Subsidiary may authorize, declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case to any applicable withholding tax. If on any of Dividend Payment Date the dividend payable on such date is not paid in full on all or other distribution by a Restricted Subsidiary, Borrower or a Restricted Subsidiary receives at least its pro rata share of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or distribution;
(xvii) Borrower may authorize, declare and pay Dividends with the unpaid part thereof cash proceeds contributed to its common equity (including from the net cash proceeds of any equity issuance by any Parent Company), so long as, with respect to any such payments, no Event of Default shall have occurred and be paid continuing or would result therefrom; provided that the amount of any such cash proceeds that are utilized for any Dividend under this clause (xvii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(iii) of the definition of “Available Amount”;
(xviii) Borrower and any Restricted Subsidiary may authorize, declare and pay Dividends within 90 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03;
(xix) any Dividends, so long as (x) at the time of and after giving effect to such Dividend, no Event of Default has occurred and is continuing and (y) on a subsequent date or dates Pro Forma Basis, as of the last day of the most recently ended Test Period, the Consolidated First Lien Net Leverage Ratio does not exceed 2.10:1.00;
(xx) [reserved];
(xxi) any payment that is intended to be determined by prevent any Indebtedness of Borrower from being treated as an “applicable high yield discount obligation” within the board meaning of directors on which Section 163(i)(1) of the Corporation shall have sufficient monies properly applicable, under the provisions of Code;
(xxii) [reserved]; and
(xxiii) any applicable law and under the provisions of any trust indenture securing bonds, debentures Dividend or other securities distribution made with the net cash proceeds or other assets or property received from a disposition permitted pursuant to Section 10.02(xxix). In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the Corporationdefinitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall, to the payment extent such loan or advance remains unpaid, be deemed to be cash Dividends paid to Holdings to the extent provided in said Section 10.05(vi). Notwithstanding anything to the contrary in this Section 10.03, Borrower and its Restricted Subsidiaries shall not, directly or indirectly, sell or otherwise transfer any Intellectual Property that is material to the operations of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled Borrower and its Subsidiaries taken as a whole to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsUnrestricted Subsidiary.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Dividends. The holders of Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the Deferral Preferred Shares, Series-[·] following shall be entitled permitted:
(a) Dividends by any Company to receive any Borrower or any Guarantor that is a Wholly Owned Subsidiary of any Borrower;
(b) so long as no Default shall then exist or would arise therefrom, payments to Holdings to permit Holdings, and the Corporation shall pay thereonsubsequent use of such payments by Holdings, as and when declared to repurchase or redeem Qualified Capital Stock of Holdings held by the board officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of directors out any Company, upon their death, disability, retirement, severance or termination of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fouremployment or service; provided that if an event the aggregate cash consideration paid for all such redemptions and payments shall not exceed $2.5 million, in any fiscal year, (including a redemption) shall occur that results and up to 100% of such $2.5 million not used in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall fiscal year may be equal carried forward to the product obtained by multiplying the amount in next succeeding (xbut no other) above by a fractionfiscal year);
(c) so long as no Default shall then exist or would arise therefrom, the numerator of which is the actual number of days attributable (A) to the partial Dividend Period extent actually used by Holdings to pay such taxes, costs and the denominator of which is 365expenses, subject in each case payments by any Borrower to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the Corporation payable legal existence of Holdings and (B) payments by any Borrower to or on behalf of Holdings in lawful money an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of clauses (A) and (B) in an aggregate amount not to exceed $5 million in any fiscal year;
(d) Permitted Tax Distributions, so long as Holdings uses such distributions to pay its taxes; and
(e) payments to Holdings by any Company to permit distributions by Holdings, and the subsequent use of such payments by Holdings to make distributions, in an aggregate amount not exceeding the sum of 50% of Consolidated Net Income for the period from October 2, 2005 to the end of the United States most recent fiscal quarter for which financial statements are available plus 100% of the Net Cash Proceeds of Equity Issuances after the Closing Date (less any tax required to the extent not used for Permitted Acquisitions), so long as at the time of such distribution (i) Administrative Borrower has given five (5) Business Days written notice to Administrative Agents of its intention to make such distribution, which notice shall specify the amount of such distribution, (ii) no Triggering Event has occurred and is continuing and (iii) Excess Availability, after giving effect to such distribution, shall be deducted) and payment thereof shall satisfy such dividendsgreater than $90 million.
Appears in 2 contracts
Samples: Credit Agreement (Linens N Things Inc), Credit Agreement (LNT Leasing II, LLC)
Dividends. The holders Holdings shall not, and shall not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower (x) may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Borrower or any Wholly-Owned Subsidiary of the monies Borrower and (y) if such Subsidiary is not a Wholly-Owned Subsidiary, may pay cash Dividends to its shareholders 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Corporation properly applicable various classes of equity interests in such Subsidiary);
(ii) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), Holdings may repurchase outstanding shares of dividendsits common stock (or options to purchase such common stock) following the death, on each Dividend Payment Datedisability, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: retirement or termination of employment of employees, officers or directors of Holdings or any of its Subsidiaries, provided that (x) the product all amounts used to effect such repurchases are obtained by multiplying $1,000 by Holdings from a rate per annum equal substantially concurrent issuance of its common stock (or options to the rate purchase such common stock) to other employees, members of interest payable by the Trust on the Trust Notes as management, executive officers or directors of the Issue Date, by Holdings or any of its Subsidiaries or (y) four; to the extent the proceeds used to effect any repurchase pursuant to this clause (y) are not obtained as described in preceding clause (x), the aggregate amount of Dividends paid by Holdings pursuant to this clause (ii) (exclusive of amounts paid as described pursuant to preceding clause (x)) shall not exceed $1,000,000 in any fiscal year of Holdings, provided that, in the event that the maximum amount which is permitted to be expended in respect of Dividends during any fiscal year pursuant to this clause (ii)(y) is not fully expended during such fiscal year, the maximum amount which may be expended during the immediately succeeding fiscal year pursuant to this clause (ii)(y) shall be increased by such unutilized amount;
(iii) the Borrower may pay cash Dividends to Holdings for the purpose of paying, so long as all proceeds thereof are promptly used by Holdings to pay, its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, legal and accounting expenses and similar expenses), provided that if an event the aggregate amount of Dividends paid by Holdings pursuant to this clause (including a redemptioniii) shall occur not exceed $500,000 in any fiscal year of Holdings;
(iv) the Borrower may pay cash Dividends to Holdings for the purpose of paying, so long as all proceeds thereof are promptly used by Holdings to pay, franchise taxes and federal, state and local income taxes and interest and penalties with respect thereto, if any, payable by Holdings, provided that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods refund shall be equal promptly returned by Holdings to the product obtained Borrower;
(v) the Borrower may pay cash Dividends to Holdings for the purpose of enabling Holdings to pay the Dividends referred to in clause (ii) above, so long as all proceeds thereof are promptly used by multiplying Holdings to pay such Dividends; and
(vi) the amount in (x) above by a fraction, the numerator exchange of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Holdings Junior Subordinated Debentures for Holdings Series A Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the CorporationStock, to the payment of the same. The holders of the Deferral Preferred Sharesextent permitted as provided in Section 9.04(xv), Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendspermitted.
Appears in 2 contracts
Samples: Credit Agreement (Fairchild Semiconductor Corp), Credit Agreement (FSC Semiconductor Corp)
Dividends. The holders Borrower will not, and will not permit any of the Deferral Preferred Sharesits Subsidiaries to, Series-[·] shall be entitled to receive and the Corporation shall authorize, declare or pay thereonany Dividends, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: except that:
(i) (x) any Subsidiary of the product obtained by multiplying $1,000 by Borrower which is not a rate per annum equal Subsidiary Guarantor may pay Dividends to the rate of interest payable by the Trust on the Trust Notes as Borrower or any Wholly-Owned Subsidiary of the Issue DateBorrower, by (y) fourany Subsidiary Guarantor may pay Dividends to the Borrower or any other Subsidiary Guarantor and (z) if the respective Subsidiary is not a Wholly-Owned Subsidiary of the Borrower, such Subsidiary may pay Dividends to its shareholders generally so long as the Borrower and/or its respective Subsidiaries which own equity interests in the Subsidiary paying such Dividends receive at least their proportionate share thereof (based upon their relative holdings 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);
(ii) the Borrower may make, pay or declare cash Dividends; provided that, for all Dividends paid pursuant to this clause (ii), (A) Dividends shall be paid within 90 days of the declaration thereof; (B) Dividends paid in respect of a fiscal quarter shall only be paid after the date of delivery of quarterly or annual financial statements for such fiscal quarter pursuant to Sections 8.01(a) and (b), as the case may be, and on or prior to 45 days after the last day of the immediately succeeding fiscal quarter, (C) no Default or Event of Default shall have occurred and be continuing at the time of declaration, (D) no Default or Event of Default shall have occurred and be continuing (or would arise after giving effect thereto) at the time of payment, and (E) on or prior to the declaration and payment of a Dividend, the Borrower shall deliver to the Administrative Agent an officer’s certificate signed by the senior financial officer of the Borrower, certifying that the requirements set forth in preceding clauses (A) through (D) are satisfied;
(iii) the Borrower may purchase or redeem shares of common stock of the Borrower in market purchases under Rule 10b-18 or other purchases approved by the Borrower’s Board of Directors, any committee thereof or any authorized officer; provided that if an event (including a redemptionA) no Default or Event of Default shall occur that results in accrued have occurred and unpaid dividends for a partial Dividend Period becoming payablebe continuing at the time of any such purchases, the dividend payable for any partial Dividend Periods (B) no Default or Event of Default shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case arise after giving effect to any applicable withholding tax. If on any Dividend Payment Date such purchases and (C) the dividend payable on such date is not paid Borrower in full on all the exercise of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, its rights under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] this Section 9.03(iii) shall not be entitled permitted to any dividends purchase or redeem shares beneficially owned directly or indirectly by Pxxxx Xxxxxxxxxxxxx; and
(iv) the Borrower may authorize, declare and distribute a dividend of Rights (as such term is defined and which are convertible into other than or securities as set forth in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made Shareholder Rights Agreement) as contemplated by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsShareholder Rights Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Baltic Trading LTD), Credit Agreement (Baltic Trading LTD)
Dividends. The holders Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Parent or any of its Subsidiaries, except that:
(i) any Subsidiary of each Borrower may pay cash Dividends to such Borrower or to any Wholly-Owned Domestic Subsidiary of such Borrower and any Foreign Subsidiary of each Borrower also may pay cash Dividends to any Wholly-Owned Foreign Subsidiary of such Borrower; provided that no such Dividends shall be paid to 1623739 Alberta Ltd. (Alberta) or to 1623753 Alberta Ltd. (Alberta);
(ii) provided that a Material Contract Termination Event shall not have occurred and be continuing, any direct Non-Wholly-Owned Subsidiary of each Borrower may pay cash Dividends to its shareholders, members or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Interest in such Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Deferral Preferred SharesEquity Interest in the Subsidiary paying such Dividends and taking into account the relative preferences, Series-[·] if any, of the various classes of Equity Interests of such Subsidiary);
(iii) SAE, the Delaware Subsidiary Borrower and the Alaskan Subsidiary Borrower may pay cash Dividends to Parent, so long as the proceeds thereof are promptly used by Parent to pay operating expenses incurred in the ordinary course of business (including, without limitation, outside directors and professional fees, expenses and indemnities) and other similar corporate overhead costs and expenses, provided that the aggregate amount of all cash Dividends paid pursuant to this clause (iii) shall not exceed $100,000 in any fiscal year of Parent;
(iv) SAE, the Delaware Subsidiary Borrower and the Alaskan Subsidiary Borrower may pay cash Dividends to Parent at the times and in the amounts necessary to enable Parent to pay its tax obligations; provided that (x) the amount of cash Dividends paid pursuant to this clause (iv) to enable Parent 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 Parent at such time for the respective period and (y) any refunds received by Parent shall promptly be returned by Parent to SAE, the Delaware Subsidiary Borrower or the Alaskan Subsidiary Borrower, as applicable;
(v) provided that a Material Contract Termination Event shall not have occurred and be continuing, SAE, the Delaware Subsidiary Borrower and the Alaskan Subsidiary Borrower may pay cash Dividends to Parent in an aggregate amount for all such Dividends not to exceed $500,000 (although no more than $250,000 of such Dividends may be paid in any fiscal year of Parent) for the purpose of enabling Parent to redeem, repurchase or otherwise acquire for value, and Parent may redeem, repurchase or otherwise acquire for value, outstanding shares of Parent Common Stock (or options or warrants to purchases Parent Common Stock) following the death, disability or termination of employment of officers, directors or employees of Parent or any of its Subsidiaries, provided that (x) the only consideration paid by Parent in respect of such redemptions or purchases shall be entitled cash and Shareholder Subordinated Notes, (y) the sum of (I) the aggregate amount paid by Parent in cash in respect of all such redemptions or purchases plus (II) the aggregate amount of all cash payments made on all Shareholder Subordinated Notes shall not exceed $500,000 in respect of all such redemptions, purchases and payments (although no more than $500,000 of such redemptions, purchases and payments may be made in any fiscal year of Parent) and (z) at the time of any cash Dividend, purchase or payment permitted to receive and be made pursuant to this Section 8.03(v), including any cash payment made under a Shareholder Subordinated Note, no Default or Event of Default shall then exist or result therefrom;
(vi) Parent may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the Corporation shall pay thereonterms thereof solely through the issuance of additional shares of such Qualified Preferred Stock (but not in cash), provided that in lieu of issuing additional shares of such Qualified Preferred Stock as and when declared by Dividends, Parent may increase the board of directors out liquidation preference of the monies shares of Qualified Preferred Stock in respect of which such Dividends have accrued;
(vii) SAE may pay regularly scheduled Dividends to Parent on its Qualified Preferred Stock pursuant to the terms thereof, provided that Parent must make an immediate corresponding cash contribution to SAE in the same amount as any such Dividend paid in cash;
(viii) Parent may pay Dividends in an aggregate amount not to exceed 50% of the Corporation properly applicable Net Cash Proceeds of all issuances of Equity Interests by Parent (other than sales or issuances of Parent Common Stock to employees, officers and/or directors of Parent and its Subsidiaries (including as a result of the exercise of any options with respect thereto) following the Funding Date, provided that (a) all mandatory prepayments in respect of such issuance shall have been completed in accordance with Section 4.02, (b) no Default or Event of Default shall have occurred or could reasonably be expected to result from such Dividend, (c) no Material Contract Termination Event shall have occurred and be continuing and (d) the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries (without giving effect to the receipt of any such Net Cash Proceeds) immediately after giving effect to the payment of dividends, on each such Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to or greater than the product obtained aggregate amount of cash and Cash Equivalents held by multiplying the amount in Parent and its Subsidiaries (x) above by a fraction, the numerator of which is the actual number of days attributable without giving effect to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions receipt of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, such Net Cash Proceeds) immediately prior to the payment of the same. The holders such Dividend;
(ix) Parent may pay a Dividend in an aggregate amount not to exceed $15,000,000 prior to December 31, 2012, provided that all of the Deferral Preferred Sharesproceeds of such Dividend are immediately applied by the recipients thereof to purchase Shareholder Subordinated Notes (which, Series-[·] for the avoidance of doubt, shall be issued on terms and conditions satisfactory to the Administrative Agent); and
(x) provided that a Material Contract Termination Event shall not have occurred and be entitled continuing, SAE, the Delaware Subsidiary Borrower and the Alaskan Subsidiary Borrower may pay cash Dividends to any dividends other than or Parent in excess of an aggregate amount not to exceed $1,750,000; provided that (x) Parent must use such funds to make the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable loans and advances as set forth in lawful money of the United States (less any tax required to be deductedSection 8.05(xvi) and payment thereof (y) any repayment received by Parent shall satisfy such dividendspromptly be returned by Parent to SAE, the Delaware Subsidiary Borrower or the Alaskan Subsidiary Borrower, as applicable.
Appears in 2 contracts
Samples: Credit Agreement (SAExploration Holdings, Inc.), Credit Agreement (SAExploration Holdings, Inc.)
Dividends. The holders Prior to the Second Closing (as defined in the Investment Agreement)4, the Company shall not, and shall not permit any Subsidiary to, declare any dividends on any shares of any class of Capital Shares, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement or other acquisition of any shares of any class of Capital Shares, or any warrants or options to purchase such Capital Shares, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Deferral Preferred SharesCompany or any of its Subsidiaries; except that:
(a) Subsidiaries of the Company may pay dividends to the Company or to Domestic Subsidiaries of the Company which are directly or indirectly wholly owned by the Company (or, Series-[·] in case of Foreign Subsidiaries, to the Company or to Subsidiaries of the Company which are directly or indirectly wholly owned by the Company);
(b) the Company and its Subsidiaries may pay or make dividends or distributions to any holder of its Capital Shares in the form of additional Capital Shares of the same class and type (provided that if any such Subsidiary has shareholders other than the Company or another wholly owned Subsidiary of the Company, such dividends or distributions shall be entitled paid to receive such Person on a pro rata basis or on a basis that is more favorable to the Company and its Subsidiaries than pro rata);
(c) the Corporation shall pay thereon, as and when declared by the board of directors out Company may repurchase Capital Shares of the monies Company owned by retired or deceased employees of the Corporation properly applicable to the payment Company or any of dividendsits Subsidiaries or their assigns, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fourestates and heirs; provided that if an event (including a redemptioni) the aggregate amount of such repurchases pursuant to this clause (c) shall occur that results not in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for aggregate exceed $3,000,000 during any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all fiscal year of the Deferral Preferred Shares, Series-[·] then issued Company and outstanding, (ii) no Event of Default has occurred and is continuing at the time of such dividend dividends or distributions or immediately after giving effect thereto;
(d) the unpaid part thereof shall be paid on Company or its Subsidiaries may make non-cash repurchases of Capital Shares deemed to occur upon exercise of stock options if such Capital Shares represent a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities portion of the Corporation, to the payment exercise price of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends.options; and
Appears in 2 contracts
Samples: Investment Agreement (Consolidated Communications Holdings, Inc.), Investment Agreement
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that:
(a) any Subsidiary of a Borrower (i) may pay cash Dividends to such Borrower or any Wholly Owned Subsidiary of such Borrower and (ii) if such Subsidiary is not a Wholly Owned Subsidiary of such Borrower, may pay cash Dividends to its shareholders generally so long as such Borrower or its 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the Deferral Preferred Sharesvarious classes of equity interests in such Subsidiary);
(b) so long as no Default exists or would result therefrom, Series-[·] shall be entitled Borrowers may pay Dividends to receive Holdings for the purpose of enabling Holdings to, and Holdings may, repurchase outstanding shares of its common stock (or options to purchase such common stock) following the Corporation shall pay thereondeath, as and when declared by the board disability, retirement or termination of employment of employees, officers or directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) fourany Company; provided that if an event (i) all amounts used to effect such repurchases are obtained by Holdings from a substantially concurrent issuance of its common stock (or options to purchase such common stock) to other employees, members of management, executive officers or directors of any Company or (ii) to the extent the proceeds used to effect any repurchase pursuant to this clause (ii) are not obtained as described in preceding clause (i), the aggregate amount of Dividends paid by Holdings to its stockholders pursuant to this paragraph (b) (exclusive of amounts paid as described pursuant to preceding clause (i)) shall not exceed $1.0 million in any fiscal year of Holdings;
(c) Borrowers may pay cash Dividends to Holdings for the purpose of paying, so long as all proceeds thereof are promptly used by Holdings to pay, its franchise taxes and operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including a redemptionlegal and accounting expenses and similar expenses and customary fees to non-officer directors of Holdings); and
(d) shall occur that results in accrued Borrowers and unpaid dividends Subsidiaries may pay cash Dividends to Holdings for a partial Dividend Period becoming payablethe purpose of paying, the dividend payable for any partial Dividend Periods shall be equal so long as all proceeds thereof are promptly used by Holdings to the product obtained by multiplying the amount in (x) above by a fractionpay, the numerator of which is the actual number of days attributable to the partial Dividend Period its income tax when and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsas due.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Lenox Group Inc), Term Loan Credit Agreement (Lenox Group Inc)
Dividends. The holders Borrower will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled authorize, declare or pay any Dividends with respect to receive Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of a Borrower may authorize, declare and pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Borrower or to other Restricted Subsidiaries of Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Borrower may authorize, declare and pay cash Dividends to its shareholders generally so long as Borrower or its Restricted 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) so long as no Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Borrower may authorize, declare and pay cash Dividends to Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall pay thereon, as and when declared not (net of any cash proceeds received by the board Holdings (but in no event from any Initial Public Offering) from issuances of directors out of the monies of the Corporation properly applicable its Equity Interests (other than to the payment extent included in the Available Amount) and contributed to Borrower in connection with such redemption or repurchase), in either case, exceed during any fiscal year of dividendsBorrower, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying greater of $1,000 by a rate per annum equal to 75,000,000 and 6.25% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the rate most recently ended Test Period (measured at the time of interest payable by the Trust on the Trust Notes as of the Issue Date, by such Dividend) or (y) foursubsequent to the consummation of any Initial Public Offering of common stock or other comparable equity interests of Borrower or any direct or indirect parent of Borrower, the greater of $120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(iii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Borrower from members of management, officers, directors, employees of Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and any other Parent Company shall cause the amount of such expenses to be repaid to Borrower or the relevant Restricted Subsidiary of Borrower out of the proceeds of such offering promptly if such offering is completed;
(v) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with Requirements of Law, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) Borrower may authorize, declare and pay cash Dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, Borrower and its Restricted Subsidiaries;
(B) with respect to any period where Borrower or any of its Subsidiaries is a member of a consolidated, combined or similar income Tax group for U.S. federal and/or applicable state, local or foreign income or similar Tax purposes of which a direct or indirect parent of Borrower is the common parent or other applicable taxpayer, the portion of any U.S. federal, state, local and/or foreign income and similar Taxes (including any alternative minimum taxes) of such Tax group that is attributable to the taxable income of Borrower and/or its applicable Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries for such purpose, in amounts required to pay any such Taxes that are attributable to the taxable income of such Unrestricted Subsidiaries; provided that the aggregate amount of such payments with respect to such period (regardless of when paid) shall not exceed the aggregate amount of such Taxes that Borrower and/or its applicable Restricted Subsidiaries (and, subject to the limitation described above, any applicable Unrestricted Subsidiaries of Borrower) would have been required to pay with respect to such period were such entities stand-alone corporate taxpayers or a stand-alone corporate tax group for all applicable taxable periods ending after the date hereof taking into account any applicable limitations on the ability to utilize net operating loss carryforwards and similar tax attributes under the Code;
(C) customary salary, bonus and other benefits payable to directors, officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of Borrower of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if an event such purchase or other acquisition had been made by Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (including a redemptionA) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablesuch dividend, the dividend payable for any partial Dividend Periods distribution, loan or advance shall be equal made concurrently with the closing of such purchase or other acquisition and (B) such Parent Company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Borrower or any Restricted Subsidiary or (2) the merger (to the product obtained extent permitted in Section 10.02) into Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(G) any customary fees and expenses related to any unsuccessful equity offering by multiplying any Parent Company directly attributable to the amount operations of Borrower and its Restricted Subsidiaries;
(vii) Borrower and its Restricted Subsidiaries may give reasonable and customary indemnities to directors, officers and employees of Holdings or any other Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Borrower and its Restricted Subsidiaries;
(viii) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of (x) above by a fraction, obligations under or in respect of director and officer insurance policies to the numerator of which is the actual number of days extent reasonably attributable to the partial ownership or operation of Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend Period used (x) to fund the Transaction, including Transaction Costs, and (y) in order to satisfy deferred purchase price, earn-outs and contingent payments in respect of any amounts due and owing as provided for in the Acquisition Agreement;
(x) Borrower may authorize, declare and pay cash Dividends to Holdings (who may subsequently authorize, declare and pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v), 10.06(vii) and 10.06(xii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend (including to any Parent Company) to fund a payment of dividends on Borrower’s or any Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date, not to exceed, in any fiscal year, 6.0% of the net cash proceeds contributed to the capital of Borrower from any such Initial Public Offering;
(xiii) any Dividends to the extent the same are made solely with the Available Amount, so long as, solely to the extent clause (a)(ii) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated First Lien Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 3.10:1.00;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by Borrower and the denominator Guarantors; provided that the aggregate amount of which is 365such purchases, subject when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $60,000,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend);
(xv) the authorization, declaration and payment of Dividends or the payment of other distributions by Borrower in an aggregate amount since the Closing Date not to exceed the greater of $250,000,000 and 25.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend);
(xvi) Borrower and each Restricted Subsidiary may authorize, declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case to any applicable withholding tax. If on any of Dividend Payment Date the dividend payable on such date is not paid in full on all or other distribution by a Restricted Subsidiary, Borrower or a Restricted Subsidiary receives at least its pro rata share of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or distribution;
(xvii) Borrower may authorize, declare and pay Dividends with the unpaid part thereof cash proceeds contributed to its common equity (including from the net cash proceeds of any equity issuance by any Parent Company), so long as, with respect to any such payments, no Event of Default shall have occurred and be paid continuing or would result therefrom; provided that the amount of any such cash proceeds that are utilized for any Dividend under this clause (xvii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(iii) of the definition of “Available Amount”;
(xviii) Borrower and any Restricted Subsidiary may authorize, declare and pay Dividends within 90 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03;
(xix) any Dividends, so long as (x) at the time of and after giving effect to such Dividend, no Event of Default has occurred and is continuing and (y) on a subsequent date or dates Pro Forma Basis, as of the last day of the most recently ended Test Period, the Consolidated First Lien Net Leverage Ratio does not exceed 2.10:1.00;
(xx) [reserved];
(xxi) any payment that is intended to be determined by prevent any Indebtedness of Borrower from being treated as an “applicable high yield discount obligation” within the board meaning of directors on which Section 163(i)(1) of the Corporation shall have sufficient monies properly applicable, under the provisions of Code;
(xxii) [reserved]; and
(xxiii) any applicable law and under the provisions of any trust indenture securing bonds, debentures Dividend or other securities distribution made with the net cash proceeds or other assets or property received from a disposition permitted pursuant to Section 10.02(xxix). In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the Corporationdefinitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall, to the payment extent such loan or advance remains unpaid, be deemed to be cash Dividends paid to Holdings to the extent provided in said Section 10.05(vi). Notwithstanding anything to the contrary in this Section 10.03, Borrower and its Restricted Subsidiaries shall not, directly or indirectly, sell or otherwise transfer any Intellectual Property that is material to the operations of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled Borrower and its Subsidiaries taken as a whole to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsUnrestricted Subsidiary.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Dividends. The holders Borrower will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends, except that:
(i) any Subsidiary of the Deferral Preferred SharesBorrower may pay cash Dividends to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower and any Foreign Subsidiary of the Borrower also may pay cash Dividends to any Wholly-Owned Foreign Subsidiary of the Borrower;
(ii) any Non-Wholly Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders, Series-[·] shall be entitled members or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interest 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 purchase its Equity Interests in the open market pursuant to receive its stock repurchase plan as in effect on the Effective Date, or pursuant to an open market purchase plan the terms of which are consistent with such plan, in an aggregate amount not to exceed $50.0 million;
(iv) a Wholly-Owned Subsidiary may repurchase its Equity Interests;
(v) the repurchase of Equity Interests of the Borrower deemed to occur upon (a) the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options and (b) the withholding of a portion of such Equity Interests to pay Taxes associated therewith, and the Corporation shall purchase of fractional shares of Equity Interests of the Borrower or any of its Subsidiaries arising out of stock dividends, splits or combinations or business combination;
(vi) the Borrower may pay thereoncash Dividends or purchase its Equity Interests in the open market or otherwise at any time with the Available Amount at such time so long as immediately after such Dividend or purchase and any related transaction or borrowing the Borrower satisfies the Liquidity Test; and
(vii) the Borrower may repurchase its Equity Interests, as and when declared or warrants, puts, options or rights to purchase or otherwise acquire an Equity Interest in the Borrower from any present or former officer, director or employee or consultant of the Borrower or any of its Subsidiaries pursuant to an agreement (including an employment agreement) or plan approved in good faith by the board of directors out of the monies of the Corporation properly applicable Borrower or such Subsidiary under which such Person purchases or sells or is granted an option to the payment of dividendspurchase or sell such Equity Interests, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal in an amount not to the quotient obtained by dividing: (x) the product obtained by multiplying exceed $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results 3.0 million in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsfiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Shuffle Master Inc), Credit Agreement (Shuffle Master Inc)
Dividends. The holders Parent will not, nor will the Parent permit any of its Subsidiaries to, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that (i) any Subsidiary of the Deferral Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower, (ii) the Parent may pay regularly accruing Dividends with respect to Seller Preferred SharesStock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same, Series-[·] shall be entitled (iii) the Parent may pay regularly accruing Dividends with respect to receive and the Corporation shall pay thereonPIK Preferred Stock (whether outstanding on the Third Restatement Effective Date or issued thereafter in accordance with the requirements of this clause (iii)) through the issuance of additional shares of PIK Preferred Stock (or, as and when declared alternatively, through an increase in the aggregate liquidation preference of the outstanding PIK Preferred Stock by the board of directors out amount of the monies accumulated dividends thereunder) (but not in cash) in accordance with the terms of the Corporation properly applicable PIK Preferred Stock Documents, (iv) the Borrower may pay cash Dividends to the Parent, so long as (x) there shall exist no Default or Event of Default (both before and immediately after giving effect to the payment of dividendsthereof), on each Dividend Payment Date(y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, fixed cumulative preferential cash dividends equal expenses or losses relating to the quotient obtained Development Assets) and (z) the aggregate amount of Dividends paid by dividing: the Borrower in any fiscal year of Parent pursuant to this clause (iv) does not exceed $100,000, (v) the Borrower may pay cash Dividends to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the product obtained amount of cash Dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser of (A) the amount of such federal income taxes owing by multiplying $1,000 the Parent 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 rate per annum equal consolidated basis for such period if determined without regard to the rate of interest payable by the Trust on the Trust Notes as Parent's ownership of the Issue Date, by Borrower and (y) four; provided that if an event (including a redemption) any refunds shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, promptly be returned by the dividend payable for any partial Dividend Periods shall be equal Parent to the product obtained by multiplying Borrower and (vi) any Subsidiary of the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date Borrower that is not paid 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 full on all 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 Deferral Preferred Shares, Series-[·] then issued and outstanding, various classes of equity interests in such dividend Subsidiary or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions terms of any agreements applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsthereto).
Appears in 2 contracts
Samples: Credit Agreement (Hq Global Holdings Inc), Credit Agreement (Frontline Capital Group)
Dividends. The holders Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) (A) any Wholly-Owned Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Parent may pay Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Parent or any Wholly-Owned Subsidiary of the monies Parent, (B) any Subsidiary Guarantor may pay Dividends to the Borrower or any other Subsidiary Guarantor and (C) if the respective Subsidiary is not a Wholly-Owned Subsidiary of the Corporation properly applicable Parent, such Subsidiary may pay Dividends to its shareholders generally so long as the Parent and/or its respective Subsidiaries which own Equity Interests in the Subsidiary paying such Dividends receive at least their proportionate share thereof (based upon their relative holdings of the Equity Interests in the Subsidiary paying such cash Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary); and
(ii) so long as no Event of Default (both before and after giving effect to the payment thereof) has occurred and is continuing, the Parent may repurchase its outstanding Equity Interests (or options to purchase such equity) theretofore held by its or any of dividendsits Subsidiaries’ employees, on each Dividend Payment Dateofficers or directors following the death, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate disability, retirement or termination of interest payable by the Trust on the Trust Notes as employment of employees, officers or directors of the Issue DateParent or any of its Subsidiaries, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal aggregate amount expended to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all so repurchase equity of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof Parent shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of not exceed $2,000,000 in any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities fiscal year of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsParent.
Appears in 2 contracts
Samples: Credit Agreement (General Maritime Corp / MI), Credit Agreement (General Maritime Corp / MI)
Dividends. The holders Borrower will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled directly or indirectly, authorize, declare or pay any Dividends with respect to receive the Borrower or any Restricted Subsidiary, except that:
(i) any Restricted Subsidiary may pay Dividends to the Borrower or to any Wholly-Owned Domestic Restricted Subsidiary and the Corporation shall pay thereon, as and when declared by the board of directors out any Subsidiary of the monies Borrower that is not a Credit Party may pay Dividends to any Wholly-Owned Restricted Subsidiary;
(ii) any Non-Wholly-Owned Restricted Subsidiary may pay Dividends to its shareholders, members or partners generally so long as the Borrower or a Restricted Subsidiary which owns the Equity Interests in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Corporation properly applicable Equity Interests in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);
(iii) the Borrower may redeem, repurchase or otherwise acquire for value, outstanding shares of its Qualified Equity Interests (or options or warrants to purchase its Qualified Equity Interests) following the payment death, disability or termination of dividendsemployment of officers, on each Dividend Payment Datedirectors or employees of the Borrower or any Restricted Subsidiary, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: provided that (x) the product obtained by multiplying aggregate amount of all Dividends paid or made pursuant to this clause (iii) shall not exceed $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as 10,000,000 in any fiscal year of the Issue Date, by Borrower and (y) four; at the time of any Dividend permitted to be made pursuant to this clause (iii), no Default or Event of Default shall then exist or would result therefrom;
(iv) the Borrower may pay Dividends on its Qualified Equity Interests solely through the issuance of additional shares of Qualified Equity Interests of the Borrower (but not in cash), provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablelieu of issuing additional shares of Qualified Equity Interests as Dividends, the dividend payable for any partial Dividend Periods shall be equal to Borrower may increase the product obtained by multiplying liquidation preference of the amount shares of Qualified Equity Interests in (x) above by a fraction, the numerator respect of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-Dividends have accrued;
(v) [·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-reserved]; and
(vi) [·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsreserved].
Appears in 2 contracts
Samples: Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp)
Dividends. The holders Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) Subsidiaries of the Deferral Preferred SharesParent may pay Dividends to another member of the NCLC Group; provided that the Borrower shall procure that any Dividends or other distributions and interest paid or payable in connection with such Dividends or other distributions to NCL International, Series-[·] Ltd., NCL America Holdings, LLC or Arrasas Limited shall be entitled to receive and the Corporation shall pay thereon, as and when declared received promptly by the board Parent directly or indirectly by way of directors out Dividend;
(ii) the Parent may pay Dividends in respect of the monies tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the Corporation properly applicable NCLC Group or holder of the Parent’s Capital Stock with respect to income taxable as a result of any member of the payment NCLC Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any member of dividendsthe NCLC Group; and
(iii) at any time following the listing of the ordinary Capital Stock of the Parent on an Approved Stock Exchange, the Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on each January 1, 2010 and ending on the date prior to such Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: for which financial statements are available so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by no Default or Event or Default exists or would result from such Dividend and (y) four; at the time of such Dividend and after giving effect thereto the ratio of Total Net Funded Debt to Consolidated EBITDA for the four consecutive fiscal quarters last ended for which financial statements have been provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which Facility Agent pursuant to Section 9.01 is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other less than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends5.50:1.00.
Appears in 2 contracts
Samples: Credit Agreement (NCL CORP Ltd.), Credit Agreement (NCL CORP Ltd.)
Dividends. The holders of Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the Deferral Preferred Shares, Series-[·] following shall be entitled permitted:
(a) Dividends by any Company to receive Borrower or any Subsidiary Guarantor that is a Wholly Owned Subsidiary of Borrower (or, if such Subsidiary is not a Wholly Owned Subsidiary, Dividends made to such Subsidiary on a pro rata basis to the other equityholders of such Subsidiary);
(b) payments to ALLETE under the Dividend Note;
(c) provided that no Event of Default shall then exist and be continuing or would exist after giving effect thereto, cash Dividends not to exceed $35.0 million per year;
(d) provided that no Event of Default shall then exist and be continuing or would exist after giving effect thereto, repurchases by Borrower of its capital stock for aggregate consideration not to exceed $130.0 million in the aggregate;
(e) payments to Borrower to permit Borrower, and the Corporation subsequent use of such payments by Borrower, to repurchase or redeem Qualified Capital Stock (or options therefor) of Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service or as otherwise required by any stock option plan; provided that the aggregate cash consideration paid for all such redemptions and payments shall pay thereonnot exceed, as and when declared by in any fiscal year, the board sum of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal 5.0 million (and up to 50% of such $5.0 million not used in any fiscal year may be carried forward to the rate of interest payable by the Trust on the Trust Notes as of the Issue Datenext succeeding (but no other) fiscal year), by plus (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in of any Net Cash Proceeds received by or contributed to Borrower from the issuance and sale since the issue date of Qualified Capital Stock of Borrower to officers, directors or employees of any Company that have not been used to make any repurchases, redemptions or payments under this clause (xe), plus(z) above the net cash proceeds of any "key-man" life insurance policies of any Company that have not been used to make any repurchases, redemptions or payments under this clause (e); and
(f) Dividends by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case any Non-Guarantor Subsidiary to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsNon-Guarantor Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Adesa Inc), Credit Agreement (Adesa Inc)
Dividends. The Declare, make or pay any Dividend Payments on any shares of any class of Equity Interests, either directly or indirectly, except that:
(a) Subsidiaries of Holdco may pay Dividend Payments pro rata to the holders of their Equity Interests (giving effect to relative preferences and priorities);
(b) each of Borrower, Holdco and any of its Subsidiaries may pay or make Dividend Payments or distributions to any holder of its Equity Interests in the Deferral Preferred Shares, Series-[·] shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board form of directors out additional shares of Equity Interests of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) foursame class and type; provided that if an event in the case of Subsidiaries, such Dividend Payments or distributions are made to the holders of such Equity Interests on a pro rata basis;
(including a redemptionc) Borrower may make Dividend Payments to Holdco so long as the proceeds thereof shall ultimately be used by Holdco (and Holdco shall be entitled) to repurchase shares of Equity Interests of Holdco or its parent companies owned by former, present or future employees, officers and directors of Holdco, Borrower or any Subsidiary or their assigns, estates and heirs; provided that the aggregate amount of Dividend Payments made by Borrower pursuant to this paragraph (c) shall occur not in the aggregate exceed the sum of (i) $25,000,000 during the term of this Agreement plus (ii) the amount of net cash proceeds received by or contributed to Borrower from the issuance and sale of Equity Interests of Holdco or Borrower, to officers, directors or employees of Holdco or any Subsidiary (it being understood that results the discharge of any Indebtedness owing from any officer, director or employee to Holdco or Borrower in accrued and unpaid dividends exchange for the redemption of Equity Interests owned by such officer, director or employee shall not constitute a partial Dividend Period becoming payablePayment) plus (iii) the proceeds of any key man life insurance policies; provided, however, that for the dividend payable avoidance of doubt, an “employee” shall include each person who would be so classified but for any partial Dividend Periods shall be equal such person’s holding an Equity Interest;
(d) (i) to the product obtained extent actually used by multiplying the amount in (x) above by a fractionsuch parent to pay such taxes, the numerator of which is the actual number of days attributable costs and expenses, Holdco may make payments to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable its parent in lawful money of the United States (less any tax an amount sufficient to pay franchise taxes and other fees required to be deductedmaintain the legal existence of Holdco and (ii) Holdco may make payments to or on behalf of its parent in an amount sufficient to pay out-of-pocket legal, accounting and payment thereof shall satisfy filing costs and other expenses and liabilities in the nature of overhead in the ordinary course of business of such dividendsparent, in the case of clause (ii) in an aggregate amount not to exceed such $1,000,000 in any Fiscal Year;
(i) Borrower may distribute amounts equal to Permitted Tax Distributions to Holdco, so long as Holdco uses funds therefrom to pay its taxes or applies such funds in accordance with the following clause (ii), and (ii) Holdco may make Permitted Tax Distributions to the holders of its Equity Interest;
(f) to the extent constituting Dividend Payments, the transactions permitted by Section 6.12; and
(g) provided no Event of Default is continuing or would result therefrom, Borrower may make Dividend Payments to Holdco and Holdco may make Dividend Payments to the holders of its Equity Interest in an aggregate amount not to exceed (x) $30,000,000, so long as the Total Leverage Ratio before and after giving effect to such Dividend Payment is less than or equal to 4.00 to 1.00 and (y) $60,000,000, so long as the Total Leverage Ratio before and after giving effect to such Dividend Payment is less than or equal to 3.00 to 1.00; and
(h) provided no Event of Default is continuing or would result therefrom, Borrower may make Dividend Payments to Holdco and Holdco may make Dividend Payments to the holders of its Equity Interest in an aggregate amount not to exceed $18,000,000.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Emdeon Inc.), Second Lien Credit Agreement (Emdeon Inc.)
Dividends. The holders VHS Holdco I will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to VHS Holdco I or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower may pay Dividends to receive the Borrower or to a Wholly-Owned Subsidiary of the Borrower;
(ii) VHS Holdco I may redeem or repurchase (and the Corporation Borrower and its Subsidiaries may declare and pay Dividends to VHS Holdco I, the proceeds of which are used to so redeem or repurchase) Equity Interests of VHS Holdco I (or any direct or indirect parent thereof) (including related stock appreciation rights or similar securities) from present or former officers, consultants, employees and directors (or their trusts or estates) of Vanguard or VHS Holdco I or any direct or indirect parent of VHS Holdco I, or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option plan, any employee stock ownership plan or any Shareholders’ Agreement, provided that the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased in any calendar year does not exceed the sum of (A) $15,000,000 plus (B) all amounts obtained by VHS Holdco I during such calendar year from the sale of such Equity Interests to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements, which, if not used in any calendar year, may be carried forward to any subsequent calendar year plus (C) all amounts obtained from any key-man life insurance policies recorded during such calendar year;
(iii) so long as there shall exist no Default or Event of Default at the time of or immediately after giving effect thereto, VHS Holdco I may effect redemptions or repurchases (and the Borrower and its Subsidiaries may declare and pay thereonDividends to VHS Holdco I, the proceeds of which are used to effect such redemptions or repurchases) of its Equity Interests from any present or former officer, consultant, employee or director (or his or her trust or estate) of Vanguard or VHS Holdco I or any direct or indirect parent of VHS Holdco I, or any of its Subsidiaries upon the death, disability, retirement or termination of employment of such Person so long as the aggregate amount of such redemptions or repurchases does not exceed $35,000,000;
(iv) so long as there shall exist no Default under Section 10A.01 or Event of Default (both before and after giving effect to the payment thereof) any non-Wholly-Owned Subsidiary of the Borrower may pay Dividends to its shareholders or partners generally in the form of cash, Cash Equivalents, common stock and preferred stock permitted to be issued pursuant to Section 9.12(b), 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests in such Subsidiary);
(A) VHS Holdco I may make, or may make Dividends to allow any direct or indirect parent to make, noncash repurchases of Equity Interests of VHS Holdco I or any direct or indirect parent, deemed to have occurred upon the exercise of stock options if such Equity Interests represent a portion of the exercise price of such options and (B) VHS Holdco I may purchase, or may make Dividends to allow any direct or indirect parent to purchase, common Equity Interests of VHS Holdco I or any direct or indirect parent, at fair market value from officers, employees and directors of Vanguard, VHS Holdco I or any direct or indirect parent of VHS Holdco I, or any of their Subsidiaries to the extent necessary to cover the exercise price of options and income tax withholding, provided that the aggregate amount of cash paid in respect of all such shares so repurchased pursuant to this clause (B) in any calendar year does not, when declared added to the aggregate amount of all Dividends made in such calendar year pursuant to clauses (vi) and (vii) below, exceed $10,000,000;
(vi) VHS Holdco I may make, or may make Dividends to any direct or indirect parent to make, cash payments to officers, employees and directors of Vanguard, VHS Holdco I or any direct or indirect parent of VHS Holdco I, or any of their Subsidiaries in respect of stock appreciation rights issued pursuant to a compensation plan approved by the board of directors out of VHS Holdco I or by the compensation committee thereof, provided that the aggregate amount of cash paid pursuant to this clause (vi) in any calendar year does not, when added to the aggregate amount of all Dividends made in such calendar year pursuant to clause (v)(B) above and clauses (vii) below, exceed $10,000,000;
(vii) the Borrower and its Subsidiaries may purchase Equity Interests in their respective non-Wholly-Owned Subsidiaries, and non-Wholly-Owned Subsidiaries of the monies Borrower and Health Care Joint Ventures may repurchase their respective outstanding Equity Interests, provided that the aggregate amount of cash paid pursuant to all purchases and repurchases under this clause (vii) in any calendar year does not, when added to the Corporation properly applicable aggregate amount of Dividends made in such calendar year pursuant to clauses (v)(B) and (vi) above, exceed $10,000,000;
(viii) the Borrower and VHS Holdco I may pay cash Dividends to VHS Holdco I or any direct or indirect parent so long as the proceeds thereof are promptly used by VHS Holdco I or such parent (w) to pay operating expenses incurred in the ordinary course of business (including, without limitation, outside directors and professional fees, expenses and indemnities) and other similar overhead costs, expenses and tax liabilities (other than income taxes) of VHS Holdco I or, to the extent primarily attributable to the operations of VHS Holdco I and its Subsidiaries, of such parent, (x) to pay Dividends to VHS Holdings LLC for the payment of dividendscosts, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal expenses and tax liabilities (other than income taxes) incurred by VHS Holdings LLC that are of a similar nature as those described in preceding clause (w) and are primarily attributable to the quotient obtained operations of VHS Holdco I and its Subsidiaries, (y) to pay fees and expenses relating to any offering, investment or acquisition by dividing: VHS Holdco I or any of its Subsidiaries permitted hereunder (whether or not successful) and other fees and expenses incidental to the maintenance of the existence of VHS Holdco I or such parent (in each case to the extent primarily attributable to the operations of VHS Holdco I and its Subsidiaries) and the ownership by each of such entities of, as applicable, the Borrower, Vanguard and VHS Holdco I and Subsidiaries of VHS Holdco I and (z) to make payments permitted by Section 9.06 (other than clause (i) thereof);
(ix) the Borrower may pay Dividends to VHS Holdco I which in turn may pay Dividends directly or indirectly to Vanguard for the purpose of enabling VHS Holdco I or Vanguard to pay federal and state income taxes imposed directly on (through an entity treated as a disregarded entity for applicable income tax purposes) or allocated to (through an entity treated as a partnership for applicable income tax purposes) VHS Holdco I or Vanguard or which are due and payable by VHS Holdco I or Vanguard as part of a consolidated group (or enabling Vanguard to pay Dividends to VHS Holdings LLC should such taxes be imposed directly on or allocated to VHS Holdings LLC), to the extent such taxes are attributable to the operations of VHS Holdco I and its Subsidiaries (or, in the case of Dividends from the Borrower, to the extent such taxes are attributable to the operations of the Borrower and its Subsidiaries), and so long as (x) such Dividends are only paid at the time that VHS Holdco I, Vanguard, or VHS Holdings LLC (as the case may be) is otherwise required to make such federal, state or local income tax payments (including estimated tax payments), (y) any refunds received by VHS Holdco I, Vanguard, or VHS Holdings LLC (as the case may be) in respect of such federal, state or local income tax obligations are promptly returned to the Borrower as an equity contribution or series of equity contributions and (z) the amount of such payments in respect of any tax year does not exceed the amount that VHS Holdco I and its Subsidiaries (or, in the case of Dividends from the Borrower, the Borrower and its Subsidiaries) would have been required to pay in respect of such federal or state income taxes (as the case may be) in respect of such year if VHS Holdco I and its Subsidiaries (or the Borrower and its Subsidiaries) paid taxes directly as a stand-alone taxpayer (or stand-alone group);
(x) the product obtained Borrower may pay cash Dividends to VHS Holdco I so long as the proceeds thereof are promptly used by multiplying $1,000 by a rate per annum equal VHS Holdco I to make Dividends permitted pursuant to clause (iii), (v)(B), (vi) or (xiii) of this Section 9.03;
(xi) VHS Holdco I may pay cash Dividends to any direct or indirect parent for the purposes of such parent making Dividends of the type described in clause (ii), (iii), (v)(B) and (vi) of this Section 9.03 with respect to officers, consultants, employees and directors of Vanguard to the rate extent same are primarily employed, appointed or engaged, as the case may be, in connection with the operations of interest payable by VHS Holdco I and its Subsidiaries;
(xii) the Trust Borrower and VHS Holdco I may pay cash Dividends to effect the Distribution and the Refinancing; and
(xiii) so long as no Default or Event of Default is then in existence or would arise therefrom, the Borrower and VHS Holdco I may pay cash Dividends not otherwise permitted in clauses (i) through (xii) above in an amount not to exceed $25,000,000 in the aggregate (or if the Adjusted Consolidated Net Leverage at such time determined on a Post-Test Period Pro Forma Basis is less than 5.0:1.0, $50,000,000 at any time) minus the Trust Notes amount applied to make prepayments of subordinated Indebtedness pursuant to Section 9.10(i) plus, (B) so long as the Adjusted Consolidated Leverage Ratio on a Post-Test Period Pro Forma Basis as of the Issue Date, by such date (yafter giving effect to such Dividends) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payableis less than 4.5 to 1.0, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsCumulative Credit.
Appears in 2 contracts
Samples: Credit Agreement (Vanguard Health Systems Inc), Credit Agreement (Vanguard Health Systems Inc)
Dividends. The holders U.S. Borrower will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the U.S. Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled U.S. Borrower may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out U.S. Borrower or to any Wholly-Owned Domestic Subsidiary of the monies U.S. Borrower and any Subsidiary of any Canadian Borrower may pay cash Dividends to the U.S. Borrower or any Wholly-Owned Subsidiary of the Corporation properly applicable U.S. Borrower;
(ii) any Non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends to its shareholders, members or partners generally, so long as the payment U.S. Borrower or its respective Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of dividendsthe Equity Interest 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 U.S. Borrower and any of its Subsidiaries may pay cash Dividends in an amount not to exceed the Cumulative Retained Excess Cash Flow Amount as in effect immediately before the respective Dividend so long as no Default or Event of Default exists or would result therefrom;
(iv) the U.S. Borrower may pay cash Dividends on the U.S. Borrower Common Stock at the end of each Dividend Payment Date, fixed cumulative preferential cash dividends equal Fiscal Quarter in an aggregate amount not to the quotient obtained by dividing: exceed (x) if the product obtained by multiplying Senior Secured Leverage Ratio is greater than 4.50:1.00 for the Test Period most recently ended for which financial statements have been delivered to the Lenders pursuant to Section 9.01(a) or (b), as applicable, the lesser of (I) $1,000 by 0.01 per each share of the U.S. Borrower’s Common Stock issued and outstanding at such time and (II) $35,000,000 less the aggregate amount of cash Dividends paid pursuant to this Section 10.03(iv) during the Fiscal Year of which such Fiscal Quarter is a rate per annum part and (y) if the Senior Secured Leverage Ratio is less than or equal to 4.50:1.00 for the rate Test Period most recently ended for which financial statements have been delivered to the Lenders pursuant to Section 9.01(a) or (b), as applicable, $35,000,000 less the aggregate amount of interest payable by cash Dividends paid pursuant to this Section 10.03(iv) during the Trust Fiscal Year of which such Fiscal Quarter is a part; provided that, in each case, no Default or Event of Default then exists or would result therefrom;
(v) any Canadian Borrower or any Subsidiary of any Canadian Borrower may pay Dividends to the U.S. Borrower as are necessary to reimburse the U.S. Borrower or any of its Subsidiaries for expenses directly attributable to a Canadian Borrower or any of its respective Subsidiaries;
(vi) the Dividends listed on Schedule 10.03(vi); and
(vii) the Trust Notes U.S. Borrower and any of its Subsidiaries may pay Dividends not otherwise permitted hereto in an aggregate amount not to exceed $20,000,000; provided that (x) no Default or Event of Default then exists or would result therefrom, and (y) the U.S. Borrower is in compliance with the financial covenant set forth in Section 10.08 (whether or not then in effect), determined on a Pro Forma Basis as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all last day of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsCalculation Period most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (Walter Energy, Inc.), Credit Agreement (Walter Energy, Inc.)
Dividends. The holders Holdings will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred SharesTerm Borrower may pay cash Dividends to the Term Borrower or to any Wholly-Owned Domestic Subsidiary of the Term Borrower and any Foreign Subsidiary of the Term Borrower also may pay cash Dividends to the Term Borrower, Series-[·] any Subsidiary Guarantor or any Wholly-Owned Foreign Subsidiary of the Term Borrower;
(ii) the Term Borrower may pay cash Dividends to Holdings, and Holdings may pay cash Dividends to its direct or indirect parent, , including the Sponsor or Affiliates of Sponsor, so long as the proceeds thereof are promptly used by Holdings or Holdings’ direct or indirect parent, including the Sponsor or Affiliates of Sponsor, to pay operating expenses incurred in the Ordinary Course of Business (including, without limitation, outside directors and professional fees, expenses and indemnities, and any franchise and other taxes necessary to maintain Holdings corporate existence) and other similar corporate overhead costs and expenses, provided that the aggregate amount of all cash Dividends paid pursuant to this clause (ii) shall be entitled not exceed $500,000 in any fiscal year of Holdings;
(iii) if the Term Borrower is a member of a consolidated, combined or similar income tax group and is classified as a corporation for federal income tax purposes, the Term Borrower may pay cash Dividends to receive Holdings (or any other Person that is the parent of a consolidated, combined or similar income tax group of which the Term Borrower is a member) at the times and in the Corporation amounts necessary to pay the portion of any consolidated, combined or similar income tax liability attributable to the income of the Term Borrower or its Subsidiaries; provided that (x) the amount of cash Dividends paid pursuant to this clause (iii) at any time shall pay thereon, not exceed the tax liability that would have been imposed on the Term Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis at such time for the respective period and Holdings had been classified as a corporation for federal income tax purposes and when declared (y) any refunds of such taxes received by the board applicable taxpayer shall promptly be returned by such taxpayer to the Term Borrower;
(iv) the Term Borrower may pay cash Dividends to Holdings, and Holdings may pay cash Dividends to its direct or indirect parent, for the purpose of directors out enabling Holdings and Holdings’ direct or indirect parent to redeem, repurchase or otherwise acquire for value, and Holdings and Holdings’ direct or indirect parent may redeem, repurchase or otherwise acquire for value, outstanding shares of Holdings common Equity Interests (or options or warrants to purchases Holdings common Equity Interests) held by former officers, directors, members of management or employees of Holdings or Holdings’ direct or indirect parent or any of its or their Subsidiaries, provided that (x) the monies aggregate amount of all such Dividends shall not exceed $1,500,000 (or such additional amounts as may be reasonably agreed to by the Corporation properly applicable Agents) plus an amount equal to cash proceeds from the sale of Equity Interests to directors, officers, members of management, or employees or other equityholders of Holdings or Holdings’ direct or indirect parent, (y) on the date any such Dividend is made and after giving effect to the payment of dividendssuch Dividend, no Default or Event of Default shall exist or have occurred and be continuing, and (z) on each the date any such Dividend Payment Date, fixed cumulative preferential cash dividends equal is made and after giving effect to the quotient obtained by dividing: payment of such Dividend, Availability shall be at least $2,000,000;
(v) the Term Borrower and Holdings may pay the Closing Date Distribution on the Closing Date;
(vi) the Term Borrower may pay any Dividends not otherwise described in this Section 11.03 in an aggregate amount not to exceed the Available Amount; provided that (v) Holdings has delivered to the Agent certified unqualified audited consolidated financial statements of Holdings and its Subsidiaries for Holdings’ fiscal year ending December 31, 2017, (w) Holdings shall be in compliance with a Total Net Leverage Ratio of 2.25:1.00 on a Pro Forma Basis after giving effect to the proposed Dividend, (x) the product obtained by multiplying $1,000 by a rate per annum equal average aggregate amount of available cash on the balance sheet in the 10 days prior to the rate of interest payable by date any such Dividend is made shall be at least $30,000,000 on a Pro Forma Basis after giving effect to the Trust on the Trust Notes as of the Issue Dateproposed Dividend, by (y) four; provided that if an event no Default or Event of Default shall exist or have occurred and be continuing and (including a redemptionz) the aggregate amount of all such Dividends paid pursuant to this clause (vi) shall occur that results not exceed $10,000,000;
(vii) [Reserved]; and
(viii) the Term Borrower and Holdings may make payments of the fees specified in accrued the Management Agreement in accordance with the terms of the Management Agreement and unpaid dividends with respect to indemnities and out-of-pocket expenses provided for a partial Dividend Period becoming payablein the Management Agreement so long as, with respect to all such payments other than the actual out-of-pocket expenses of the Sponsor directly related to the management of the Credit Parties, (a) no Event of Default pursuant to Section 12.01 or Section 12.05 has occurred or is continuing or would result therefrom, (b) on the date any such payment, dividend payable for any partial Dividend Periods or distribution is made and after giving effect to such payment, dividend or distribution, Availability shall be equal to the product obtained by multiplying the at least $2,000,000 and (c) such payments, shall not exceed an aggregate amount in any fiscal year of 1.5% of the sum of (x) above the amount paid by a fraction, the numerator of which is the actual number of days attributable Parent pursuant to the partial Dividend Period Merger Agreement and (y) the denominator aggregate amount of which is 365capital contributed to Holdings by Parent, subject in each case to Sponsor or any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Sharestheir respective Affiliates after February 1, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends2017.
Appears in 2 contracts
Samples: Credit Agreement (International Money Express, Inc.), Credit Agreement (Fintech Acquisition Corp. II)
Dividends. The holders Borrower will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled authorize, declare or pay any Dividends with respect to receive Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of a Borrower may authorize, declare and pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Borrower or to other Restricted Subsidiaries of Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Borrower may authorize, declare and pay cash Dividends to its shareholders generally so long as Borrower or its Restricted 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) so long as no Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Borrower may authorize, declare and pay cash Dividends to Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall pay thereon, as and when declared not (net of any cash proceeds received by the board Holdings (but in no event from any Initial Public Offering) from issuances of directors out of the monies of the Corporation properly applicable its Equity Interests (other than to the payment extent included in the Available Amount) and contributed to Borrower in connection with such redemption or repurchase), in either case, exceed during any fiscal year of dividendsBorrower, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying greater of $1,000 by a rate per annum equal to 75,000,000 and 6.25% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the rate most recently ended Test Period (measured at the time of interest payable by the Trust on the Trust Notes as of the Issue Date, by such Dividend) or (y) foursubsequent to the consummation of any Initial Public Offering of common stock or other comparable equity interests of Borrower or any direct or indirect parent of Borrower, the greater of $120,000,000 and 10% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(iii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Borrower from members of management, officers, directors, employees of Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and any other Parent Company shall cause the amount of such expenses to be repaid to Borrower or the relevant Restricted Subsidiary of Borrower out of the proceeds of such offering promptly if such offering is completed;
(v) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with Requirements of Law, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) Borrower may authorize, declare and pay cash Dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, Borrower and its Restricted Subsidiaries;
(B) with respect to any period where Borrower or any of its Subsidiaries is a member of a consolidated, combined or similar income Tax group for U.S. federal and/or applicable state, local or foreign income or similar Tax purposes of which a direct or indirect parent of Borrower is the common parent or other applicable taxpayer, the portion of any U.S. federal, state, local and/or foreign income and similar Taxes (including any alternative minimum taxes) of such Tax group that is attributable to the taxable income of Borrower and/or its applicable Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries for such purpose, in amounts required to pay any such Taxes that are attributable to the taxable income of such Unrestricted Subsidiaries; provided that the aggregate amount of such payments with respect to such period (regardless of when paid) shall not exceed the aggregate amount of such Taxes that Borrower and/or its applicable Restricted Subsidiaries (and, subject to the limitation described above, any applicable Unrestricted Subsidiaries of Borrower) would have been required to pay with respect to such period were such entities stand-alone corporate taxpayers or a stand-alone corporate tax group for all applicable taxable periods ending after the date hereofClosing Date taking into account any applicable limitations on the ability to utilize net operating loss carryforwards and similar tax attributes under the Code;
(C) customary salary, bonus and other benefits payable to directors, officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of Borrower of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if an event such purchase or other acquisition had been made by Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (including a redemptionA) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablesuch dividend, the dividend payable for any partial Dividend Periods distribution, loan or advance shall be equal made concurrently with the closing of such purchase or other acquisition and (B) such Parent Company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Borrower or any Restricted Subsidiary or (2) the merger (to the product obtained extent permitted in Section 10.02) into Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(G) any customary fees and expenses related to any unsuccessful equity offering by multiplying any Parent Company directly attributable to the amount operations of Borrower and its Restricted Subsidiaries;
(vii) Borrower and its Restricted Subsidiaries may give reasonable and customary indemnities to directors, officers and employees of Holdings or any other Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Borrower and its Restricted Subsidiaries;
(viii) Borrower may authorize, declare and pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of (x) above by a fraction, obligations under or in respect of director and officer insurance policies to the numerator of which is the actual number of days extent reasonably attributable to the partial ownership or operation of Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend Period used (x) to fund the Transaction, including Transaction Costs, and (y) in order to satisfy deferred purchase price, earn-outs and contingent payments in respect of any amounts due and owing as provided for in the Acquisition Agreement;
(x) Borrower may authorize, declare and pay cash Dividends to Holdings (who may subsequently authorize, declare and pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v), 10.06(vii) and 10.06(xii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend (including to any Parent Company) to fund a payment of dividends on Borrower’s or any Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date, not to exceed, in any fiscal year, 6.0% of the net cash proceeds contributed to the capital of Borrower from any such Initial Public Offering;
(xiii) any Dividends to the extent the same are made solely with the Available Amount, so long as, solely to the extent clause (a)(ii) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated First Lien Net Leverage Ratio, on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed 3.10:1.00;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by Borrower and the denominator Guarantors; provided that the aggregate amount of which is 365such purchases, subject when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $60,000,000 and 5.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend);
(xv) the authorization, declaration and payment of Dividends or the payment of other distributions by Borrower in an aggregate amount since the Closing Date not to exceed the greater of $250,000,000 and 25.0% of Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the most recently ended Test Period (measured at the time of such Dividend);
(xvi) Borrower and each Restricted Subsidiary may authorize, declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case to any applicable withholding tax. If on any of Dividend Payment Date the dividend payable on such date is not paid in full on all or other distribution by a Restricted Subsidiary, Borrower or a Restricted Subsidiary receives at least its pro rata share of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or distribution;
(xvii) Borrower may authorize, declare and pay Dividends with the unpaid part thereof cash proceeds contributed to its common equity (including from the net cash proceeds of any equity issuance by any Parent Company), so long as, with respect to any such payments, no Event of Default shall have occurred and be paid continuing or would result therefrom; provided that the amount of any such cash proceeds that are utilized for any Dividend under this clause (xvii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(iii) of the definition of “Available Amount”;
(xviii) Borrower and any Restricted Subsidiary may authorize, declare and pay Dividends within 90 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03;
(xix) any Dividends, so long as (x) at the time of and after giving effect to such Dividend, no Event of Default has occurred and is continuing and (y) on a subsequent date or dates Pro Forma Basis, as of the last day of the most recently ended Test Period, the Consolidated First Lien Net Leverage Ratio does not exceed 2.10:1.00;
(xx) [reserved];
(xxi) any payment that is intended to be determined by prevent any Indebtedness of Borrower from being treated as an “applicable high yield discount obligation” within the board meaning of directors on which Section 163(i)(1) of the Corporation shall have sufficient monies properly applicable, under the provisions of Code;
(xxii) [reserved]; and
(xxiii) any applicable law and under the provisions of any trust indenture securing bonds, debentures Dividend or other securities distribution made with the net cash proceeds or other assets or property received from a disposition permitted pursuant to Section 10.02(xxix). In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for purposes of the Corporationdefinitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall, to the payment extent such loan or advance remains unpaid, be deemed to be cash Dividends paid to Holdings to the extent provided in said Section 10.05(vi). Notwithstanding anything to the contrary in this Section 10.03, Borrower and its Restricted Subsidiaries shall not, directly or indirectly, sell or otherwise transfer any Intellectual Property that is material to the operations of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled Borrower and its Subsidiaries taken as a whole to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsUnrestricted Subsidiary.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ingram Micro Holding Corp), Term Loan Credit Agreement (Ingram Micro Holding Corp)
Dividends. The holders No Credit Party will, or will permit any of its Subsidiaries to, pay any Dividends except that:
(i) Aleris may declare and pay dividends or make other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; provided, that such Equity Interests are Qualified Equity Interests;
(ii) Subsidiaries of Aleris may declare and pay dividends or make other distributions ratably with respect to their Equity Interests;
(iii) Aleris and its Subsidiaries may, or may pay Dividends to Holdings the Deferral Preferred Sharesproceeds of which are used to, Series-[·] shall be entitled to receive and (i) repurchase Equity Interests of Aleris (or any direct or indirect parent thereof) in connection with the Corporation shall pay thereon, as and when declared by the board exercise of directors out stock options (including for purposes of the monies of the Corporation properly paying tax withholding applicable to stock option exercises) granted to officers, directors, consultants or employees of Aleris, its Subsidiaries or any direct or indirect parent thereof and (ii) redeem, repurchase or otherwise acquire for value, outstanding Equity Interests of Aleris, or any direct or indirect parent thereof, (including related stock appreciation rights or similar securities) following the payment death, disability, retirement or termination of dividendsemployment of officers, on directors, consultants or employees of Aleris, any of its Subsidiaries, or any direct or indirect parent thereof or under the terms of any plan or any other agreement under which such Equity Interests or related rights were issued, in each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: case so long as (x) the product obtained aggregate amount paid by multiplying Aleris in cash in respect of all such redemptions or purchases pursuant to preceding clauses (i) and (ii) shall not exceed $1,000 5,000,000 in respect of all such redemptions, purchases and payments made in any Fiscal Year (plus the amount of net proceeds (x) received by a rate per annum equal Aleris during such Fiscal Year from sales of Equity Interests of Aleris or, to the rate extent contributed to Aleris, any of interest payable by the Trust on the Trust Notes as Aleris’ direct or indirect parents, to directors, consultants, officers or employees of the Issue DateAleris, by any of its Subsidiaries or any direct or indirect parent of Aleris in connection with permitted employee compensation and incentive arrangements and (y) fourof any key-man life insurance policies received during such Fiscal Year); provided that to the extent that any portion of such annual limit on such redemptions, purchases and payments is not utilized in any Fiscal Year, such unused portion will increase the annual limit applicable to the immediately subsequent Fiscal Year;
(iv) Aleris and its Subsidiaries may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if an event such Equity Interests represent a portion of the exercise price of such options or warrants;
(v) Aleris and its Subsidiaries may pay Dividends on the Closing Date to consummate the Transaction;
(vi) to the extent constituting Dividends, Aleris and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 10.02 or 10.06(xi), (xii) and (xiv);
(vii) Aleris and its Subsidiaries may pay Dividends to Holdings to finance investments permitted pursuant to Section 10.05; provided, that (A) any such Dividend shall be made substantially concurrently with the closing of such investment and (B) Holdings shall, immediately following the closing thereof, cause (i) all property acquired (whether assets or Equity Interests) to be contributed to Aleris or its Subsidiaries or (ii) the merger (to the extent permitted in Section 10.02) of the Person formed or acquired into Aleris or its Subsidiaries in order to consummate such investment;
(viii) Aleris may pay Dividends (including a redemptionin cash), so long as (a) shall occur that results in accrued the Distribution Conditions are satisfied (both before and unpaid dividends for a partial Dividend Period becoming payable, after giving effect to any such Dividends) or (b) such Dividends are made with the dividend payable for proceeds of any partial Dividend Periods shall be equal substantially contemporaneous issuance of Qualified Equity Interests by Aleris or any direct or indirect parent of Aleris to the product obtained extent such proceeds shall have actually been received by multiplying the amount in Aleris;
(ix) Aleris and its Subsidiaries may pay Dividends to Holdings and any other direct or indirect parent of Aleris (x) above by a fraction, the numerator of which is the actual number of days attributable in an amount (together with loans or advances made pursuant to the partial Dividend Period and the denominator of which is 365, subject Section 10.05(xix)) not to exceed $1,500,000 in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the CorporationFiscal Year, to the payment extent necessary to pay (or allow any direct or indirect parent of Holdings to pay) general corporate and overhead expenses incurred by Holdings (or any direct or indirect parent thereof) in the same. The holders ordinary course of business, plus the Deferral Preferred Sharesamount of any reasonable and customary indemnification claims made by any director or officer of Holdings (or any direct or indirect parent thereof), Series-[·] (y) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence and (z) in an amount necessary to pay the tax liabilities of Holdings (or any such direct or indirect parent) attributable to (or arising as a result of) the operations of Aleris and its Subsidiaries; provided, however, that in the case of clause (z), the amount of such dividends shall not exceed the amount that Aleris and its Subsidiaries would be entitled required to pay in respect of federal, state and local taxes and any other taxes were Aleris and the Subsidiaries to pay such taxes as stand alone taxpayers; and
(x) so long as no Event of Default is in existence or would exist immediately after giving effect thereto, Aleris may pay additional Dividends in an amount not to exceed $40,000,000 in the aggregate since the Closing Date (subject to the last sentence of Section 9.13(a)), less the sum of
(i) the aggregate amount of Investments previously actually made by Aleris or any of their Subsidiaries pursuant to Section 10.05(xvi) since the Closing Date (determined as the amount originally advanced, loaned or otherwise invested (without giving effect to any dividends other than write-downs or in excess write-offs thereof), less any returns on the respective investment not to exceed the original amount invested), (ii) the aggregate amount of the cumulative preferential cash dividends hereinbefore provided. Payment shall be payments, prepayments and redemptions of Indebtedness actually made by electronic funds transfer Aleris or any of its Subsidiaries pursuant to Section 10.08(i)(y) since the Closing Date and (iii) the aggregate amount of Permitted Acquisitions previously made by cheque Aleris or any of or on behalf of its Subsidiaries pursuant to Section 9.13(a)(iii) since the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsClosing Date.
Appears in 2 contracts
Samples: Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris Ohio Management, Inc.)
Dividends. The holders Borrower will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled directly or indirectly, authorize, declare or pay any Dividends with respect to receive the Borrower or any Restricted Subsidiary, except that:
(i) any Restricted Subsidiary may pay Dividends to the Borrower or to any Wholly-Owned Domestic Restricted Subsidiary and the Corporation shall pay thereon, as and when declared by the board of directors out any Subsidiary of the monies Borrower that is not a Credit Party may pay Dividends to any Wholly-Owned Restricted Subsidiary;
(ii) any Non-Wholly-Owned Restricted Subsidiary may pay Dividends to its shareholders, members or partners generally so long as the Borrower or a Restricted Subsidiary which owns the Equity Interests in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Corporation properly applicable Equity Interests in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);
(iii) the Borrower may redeem, repurchase or otherwise acquire for value, outstanding shares of its Qualified Equity Interests (or options or warrants to purchase its Qualified Equity Interests) following the payment death, disability or termination of dividendsemployment of officers, on each Dividend Payment Datedirectors or employees of the Borrower or any Restricted Subsidiary, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: provided that (x) the product obtained by multiplying aggregate amount of all Dividends paid or made pursuant to this clause (iii) shall not exceed $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as 10,000,000 in any fiscal year of the Issue Date, by Borrower and (y) four; at the time of any Dividend permitted to be made pursuant to this clause (iii), no Default or Event of Default shall then exist or would result therefrom;
(iv) the Borrower may pay Dividends on its Qualified Equity Interests solely through the issuance of additional shares of Qualified Equity Interests of the Borrower (but not in cash), provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablelieu of issuing additional shares of Qualified Equity Interests as Dividends, the dividend payable for any partial Dividend Periods shall be equal Borrower may increase the liquidation preference of the shares of Qualified Equity Interests in respect of which such Dividends have accrued;
(v) to the product obtained by multiplying the amount in (x) above by extent constituting a fractionDividend, the numerator of which is Borrower and its Restricted Subsidiaries may consummate the actual number of days attributable Transactions; and
(vi) to the partial Dividend Period and extent constituting a Dividend, the denominator making of which is 365any Dividends on or after the Closing Date as required by the Plan of Reorganization, subject in each case to the Confirmation Order or any applicable withholding tax. If on documents, instruments or agreements contemplated thereby, including any Dividend Payment Date in connection with (A) the dividend payable on such date is not paid in full on all conversion of the Deferral Convertible Preferred Shares, Series-[·] then issued Stock and outstanding, such dividend or (B) the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities exercise of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsClosing Date Warrants.
Appears in 2 contracts
Samples: Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp)
Dividends. The holders Holdings will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except that:
(i) (x) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Borrower or to any Wholly-Owned Subsidiary of the monies Borrower and (y) so long as no Default or Event of Default then exist or would result therefrom, any non-Wholly-Owned Subsidiary of the Corporation properly applicable Borrower may pay cash Dividends to its shareholders 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 in 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);
(ii) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), Holdings may repurchase outstanding shares of dividendsits stock (or options to purchase such stock) following the death, on each Dividend Payment Datedisability, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: retirement or termination of employment of employees of Holdings or any of its Subsidiaries, provided that (x) the product obtained only consideration paid by multiplying $1,000 Holdings in respect of such repurchases shall be cash, forgiveness of debt owed by a rate per annum equal such employee to the rate of interest payable by the Trust on the Trust Holdings and/or Holdings Shareholder Subordinated Notes as of the Issue Date, by and (y) four; the sum of (1) the aggregate amount of cash paid by Holdings in respect of all such repurchases plus (2) the aggregate amount of all repurchases of all Holdings Junior Subordinated Notes pursuant to Section 8.11(iii) plus (3) the aggregate amount of all payments made on all Holdings Shareholder Subordinated Notes pursuant to Section 8.11(iv) shall not exceed $1,000,000 in any fiscal year of Holdings, provided that if an event any unused amount thereof may be carried forward and utilized for such purposes in the immediately succeeding fiscal year of Holdings;
(including a redemptioniii) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payableso long as no Default or Event of Default then exists or would result therefrom, the dividend payable Borrower may pay cash Dividends to Holdings so long as Holdings promptly uses such proceeds for any partial Dividend Periods the purposes described in clause (ii) of this Section 8.03 or Section 8.11(iii);
(iv) so long as there shall be equal exist no Default or Event of Default (both before and after giving effect to the product obtained payment thereof), Holdings may repurchase outstanding shares of its stock (or options to purchase such stock) held by multiplying officers or employees of Holdings or any of its Subsidiaries with the amount in (x) above net cash proceeds received by a fractionHoldings from the substantially concurrent sale of Holdings Common Stock, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject Holdings Preferred Stock and/or Holdings Junior Subordinated Notes in each case to the extent that such proceeds utilize the Retained Equity Amount;
(v) the Borrower may pay cash 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, outside directors and professional fees, expenses and indemnities) and other similar corporate overhead costs and expenses, provided that the aggregate amount of cash Dividends paid pursuant to this clause (v) shall not exceed $1,000,000 in any applicable withholding tax. If fiscal year of Holdings;
(vi) Holdings may pay regularly scheduled Dividends on any Dividend Payment Date the dividend payable on such date is not paid Holdings Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of Holdings Preferred Stock, provided that in full on all lieu of issuing additional shares of Holdings Preferred Stock as Dividends, Holdings may increase the liquidation preference of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities shares of the Corporation, Holdings Preferred Stock in respect of which such Dividends have accrued;
(vii) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), from and after January 31, 2004 the Borrower may pay cash Dividends to Holdings at the times, and in the amounts, necessary to enable Holdings to make regularly scheduled cash interest payments that are due on the Holdings Senior Discount Notes;
(viii) at the time of the same. The holders issuance of the Deferral Preferred SharesHoldings Senior Discount Notes, Series-[·] shall the Borrower may pay a cash Dividend to Holdings in an amount not be entitled to exceed $1,000,000 the proceeds of which are used by Holdings to pay fees and expenses in connection with the issuance thereof or to repay any dividends other than or in excess of Holdings Junior Subordinated Notes which are not repaid with the cumulative preferential cash dividends hereinbefore provided. Payment proceeds from the Holdings Senior Discount Notes;
(ix) the Recapitalization shall be made permitted and the Borrower may pay a cash Dividend to Holdings to effectuate the same; and
(x) the Borrower may pay cash Dividends to Holdings in connection with amounts owing by electronic funds transfer or by cheque of or on behalf of it under the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsHoldings Tax Sharing Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Globe Manufacturing Corp), Credit Agreement (Globe Manufacturing Corp)
Dividends. The Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the following shall be permitted:
(a) Dividends by any Company to Borrower or any Guarantor that is a Wholly Owned Subsidiary of Borrower or, in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, Dividends pro rata to the holders of such Subsidiary’s Equity Interests, taking into account the Deferral Preferred Sharesrelative preferences, Series-[·] shall be entitled if any, on the various classes of Equity Interests of such Subsidiary;
(b) payments, dividends or distributions, directly or indirectly, to receive Holdings to permit Holdings, and the Corporation subsequent use of such payments by Holdings, to repurchase or redeem Qualified Capital Stock of Holdings or a direct or indirect parent of Holdings (including through the subsequent dividend or distribution directly or indirectly to such parent) held by active or former officers, directors, employees or consultants (or their transferees, estates or beneficiaries under their estates) of any Company or to make payment on promissory notes issued to pay the purchase price with respect to such repurchases or redemptions, upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions and payments shall pay thereonnot exceed, as and when declared by in any fiscal year, the board sum of directors out of the monies of the Corporation properly applicable (w) $3.0 million (plus any amount not used in any fiscal year may be carried forward to the payment of dividendsnext three succeeding fiscal years), on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: plus (x) the product obtained amount of any Net Cash Proceeds received by multiplying $1,000 by a rate per annum equal or contributed to Borrower from the rate issuance and sale since the issue date of interest payable by the Trust on the Trust Notes as Qualified Capital Stock of the Issue DateHoldings to officers, by directors or employees of Holdings or any Company that have not been used to make any repurchases, redemptions or payments under this clause (b), plus (y) four; provided the net cash proceeds of any “key-man” life insurance policies of any Company that if an event have not been used to make any repurchases, redemptions or payments under this clause (including b) plus (z) amounts that are contemporaneously repaid to Borrower or a redemptionSubsidiary in respect of loans made pursuant to Section 6.04(e);
(A) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained extent actually used by multiplying the amount in (x) above Holdings or any direct or indirect parent of Holdings to pay such taxes, costs and expenses, payments, dividends or distributions, directly or indirectly, by a fraction, the numerator of which is the actual number of days attributable Borrower to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of Holdings (or its direct or indirect parents) in an amount sufficient to permit Holdings to pay (or to dividend to its direct or indirect parents to pay) franchise taxes and other fees required to maintain the Corporation payable legal existence of Holdings (and its direct and indirect parents) and (B) to the extent actually used by Holdings (or a direct or indirect parent) to pay such costs and expenses, payments, dividends or distributions, directly or indirectly, by Borrower to or on behalf of Holdings in lawful money an amount sufficient to pay (or dividend to its direct or indirect parents to pay) out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings (or its direct or indirect parents), in the case of clauses (A) and (B) in an aggregate amount not to exceed $1.0 million in any fiscal year;
(d) Permitted Tax Distributions by Borrower to Holdings so long as Holdings (or to its direct or indirect parents) uses such distributions to pay the applicable taxes;
(e) payments resulting from the cashless exercise of options and warrants on the Equity Interests of any Company permitted hereunder;
(f) payment of the United States consideration in connection with the Acquisition and the Merger on the Closing Date;
(less g) Holdings may make Restricted Payments with the Net Cash Proceeds of Excluded Issuances (to the extent any tax such proceeds are not otherwise contributed to (or required to be deductedcontributed to) Borrower); and
(h) Holdings, Borrower and payment thereof shall satisfy each Subsidiary may declare and make Dividends payable solely in the Equity Interests (other than Disqualified Capital Stock not otherwise permitted by Section 7.01) of such dividendsPerson.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Holding Corp.), Credit Agreement (Mattress Firm Holding Corp.)
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the following shall be permitted:
(a) Dividends by any Subsidiary to Borrower or any other Subsidiary (and, in the case of Dividends by a non-wholly owned Subsidiary, to the Borrower and any of its other Subsidiaries and to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests of the Deferral Preferred Sharesrelevant class of Equity Interests);
(b) Any Company may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Capital Stock not otherwise permitted by Section 6.01) of such person;
(c) payments to Intermediate Holdings to permit Intermediate Holdings to make payments to Pubco or any other direct or indirect parent entity of Intermediate Holdings, Series-[·] shall be entitled to receive and the Corporation subsequent use of such payments by Pubco or any other such direct or indirect parent of Intermediate Holdings, to repurchase or redeem Qualified Capital Stock of Intermediate Holdings or any other such direct or indirect parent held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service or pay interest in respect of Holdings Employee Notes and to pay withholding or similar tax payments that are expected to be payable in connection therewith; provided that the aggregate cash consideration paid for all such redemptions and payments of any kind or nature shall pay thereonnot exceed, as and when declared by in any fiscal year, the board sum of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal 1,500,000 (with unused amounts in any fiscal year being carried over to the rate of interest payable by the Trust on the Trust Notes as of the Issue Datenext succeeding fiscal year but not to any fiscal year thereafter), by plus (y) fourthe net cash proceeds of any “key-man” life insurance policies of any Company that have not been used to make any repurchases, redemptions or payments under this clause (c); provided provided, further, that if such amount may further be increased by an event amount not to exceed the amount of any Net Cash Proceeds received by or contributed to Borrower from the issuance and sale since the Closing Date of Qualified Capital Stock of Intermediate Holdings or any other direct or indirect parent of Intermediate Holdings to officers, directors or employees of any Company that have not been used to make any repurchases, redemptions or payments under this clause (including a redemptionc);
(d) shall occur that results direct or indirect payments, Dividends or distributions to Intermediate Holdings in accrued an amount sufficient for Intermediate Holdings to pay, or to make Dividends or distributions to any direct or indirect parent of Intermediate Holdings to pay, (A) franchise taxes and unpaid dividends for a partial Dividend Period becoming payableother fees required to maintain the legal existence of Intermediate Holdings (and any direct or indirect parent thereof) and (B) out-of-pocket legal, accounting and filing costs and other expenses and obligations in the dividend payable for any partial Dividend Periods shall be equal ordinary course of business, or otherwise arising pursuant to arrangements related to the product obtained by multiplying IPO or in connection with the amount in IPO, of Intermediate Holdings (x) above by and any direct or indirect parent thereof), including overhead but excluding obligations payable to a fraction, the numerator of which is the actual number of days attributable party to the partial Dividend Period and the denominator of which is 365Tax Receivable Agreements pursuant to such Tax Receivable Agreements (but, subject in each case for clarity, Pubco may make payments to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, party pursuant to the payment Tax Receivable Agreements with amounts received directly or indirectly pursuant to the other clauses of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends.this Section 6.07);
Appears in 2 contracts
Samples: Credit Agreement (Norcraft Companies, Inc.), Credit Agreement (Norcraft Companies Lp)
Dividends. The holders No Credit Party will, or will permit any of its Subsidiaries to, pay any Dividends except that:
(i) Aleris may declare and pay dividends or make other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; provided, that such Equity Interests are Qualified Equity Interests;
(ii) Subsidiaries of Aleris may declare and pay dividends or make other distributions ratably with respect to their Equity Interests;
(iii) Aleris and its Subsidiaries may, or may pay Dividends to Holdings the Deferral Preferred Sharesproceeds of which are used to, Series-[·] shall be entitled to receive and (i) repurchase Equity Interests of Aleris (or any direct or indirect parent thereof) in connection with the Corporation shall pay thereon, as and when declared by the board exercise of directors out stock options (including for purposes of the monies of the Corporation properly paying tax withholding applicable to stock option exercises) granted to officers, directors, consultants or employees of Aleris, its Subsidiaries or any direct or indirect parent thereof and (ii) redeem, repurchase or otherwise acquire for value, outstanding Equity Interests of Aleris, or any direct or indirect parent thereof, (including related stock appreciation rights or similar securities) following the payment death, disability, retirement or termination of dividendsemployment of officers, on directors, consultants or employees of Aleris, any of its Subsidiaries, or any direct or indirect parent thereof or under the terms of any plan or any other agreement under which such Equity Interests or related rights were issued, in each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: case so long as (x) the product obtained aggregate amount paid by multiplying Aleris in cash in respect of all such redemptions or purchases pursuant to preceding clauses (i) and (ii) shall not exceed $1,000 5,000,000 in respect of all such redemptions, purchases and payments made in any Fiscal Year (plus the amount of net proceeds (x) received by a rate per annum equal Aleris during such Fiscal Year from sales of Equity Interests of Aleris or, to the rate extent contributed to Aleris, any of interest payable by the Trust on the Trust Notes as Aleris’ direct or indirect parents, to directors, consultants, officers or employees of the Issue DateAleris, by any of its Subsidiaries or any direct or indirect parent of Aleris in connection with permitted employee compensation and incentive arrangements and (y) fourof any key-man life insurance policies received during such Fiscal Year); provided that to the extent that any portion of such annual limit on such redemptions, purchases and payments is not utilized in any Fiscal Year, such unused portion will increase the annual limit applicable to the immediately subsequent Fiscal Year;
(iv) Aleris and its Subsidiaries may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if an event such Equity Interests represent a portion of the exercise price of such options or warrants;
(v) [Reserved];
(vi) to the extent constituting Dividends, Aleris and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 10.02 or 10.06(xi), (xii) and (xiv);
(vii) Aleris and its Subsidiaries may pay Dividends to Holdings to finance investments permitted pursuant to Section 10.05; provided, that (A) any such Dividend shall be made substantially concurrently with the closing of such investment and (B) Holdings shall, immediately following the closing thereof, cause (i) all property acquired (whether assets or Equity Interests) to be contributed to Aleris or its Subsidiaries or (ii) the merger (to the extent permitted in Section 10.02) of the Person formed or acquired into Aleris or its Subsidiaries in order to consummate such investment;
(viii) Aleris may pay Dividends (including a redemptionin cash), so long as (a) shall occur that results in accrued the Distribution Conditions are satisfied (both before and unpaid dividends for a partial Dividend Period becoming payableafter giving effect to any such Dividends), or (b) such Dividends are made with the dividend payable for proceeds of any partial Dividend Periods shall be equal substantially contemporaneous issuance of Qualified Equity Interests by Aleris or any direct or indirect parent of Aleris to the product obtained extent such proceeds shall have actually been received by multiplying the amount in Aleris;
(ix) Aleris and its Subsidiaries may pay Dividends to Holdings and any other direct or indirect parent of Aleris (x) above by a fraction, the numerator of which is the actual number of days attributable in an amount (together with loans or advances made pursuant to the partial Dividend Period and the denominator of which is 365, subject Section 10.05(xix)) not to exceed $1,500,000 in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the CorporationFiscal Year, to the payment extent necessary to pay (or allow any direct or indirect parent of Holdings to pay) general corporate and overhead expenses incurred by Holdings (or any direct or indirect parent thereof) in the same. The holders ordinary course of business, plus the Deferral Preferred Sharesamount of any reasonable and customary indemnification claims made by any director or officer of Holdings (or any direct or indirect parent thereof), Series-[·] (y) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence and (z) in an amount necessary to pay the tax liabilities of Holdings (or any such direct or indirect parent) attributable to (or arising as a result of) the operations of Aleris and its Subsidiaries; provided, however, that in the case of clause (z), the amount of such dividends shall not exceed the amount that Aleris and its Subsidiaries would be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deductedpay in respect of federal, state and local taxes and any other taxes were Aleris and the Subsidiaries to pay such taxes as stand alone taxpayers; and
(x) and payment thereof shall satisfy such dividendsso long as no Event of Default is in existence or would exist immediately after giving effect thereto, Aleris may pay additional Dividends in an amount not to exceed $30,000,000 during any calendar year.
Appears in 2 contracts
Samples: Credit Agreement (Aleris Ohio Management, Inc.), Credit Agreement (Aleris International, Inc.)
Dividends. The Declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the following shall be permitted:
(a) (i) Dividends by any Company to any Loan Party that is a Wholly Owned Subsidiary of Holdings (or the Borrower or a Wholly Owned Subsidiary of the Borrower following a Qualified Borrower IPO), (ii) Dividends by Holdings (or the Borrower following a Qualified Borrower IPO) payable solely in Qualified Capital Stock and (iii) Dividends by Holdings payable with the proceeds of Permitted Holdings Indebtedness;
(b) (i) Dividends by any Company that is not a Loan Party to any other Company that is not a Loan Party but is a Wholly Owned Subsidiary of Holdings (or the Borrower or a Wholly Owned Subsidiary of the Borrower following a Qualified Borrower IPO) and (ii) cash Dividends by any Company that is not a Loan Party to the holders of its Equity Interests on a pro rata basis;
(c) (A) to the Deferral Preferred Sharesextent actually used by Holdings to pay such franchise taxes, Series-[·] costs and expenses, fees, payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees solely required to maintain the legal existence of Holdings, (B) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, and (C) management, consulting, monitoring and advisory fees and related expenses and termination fees pursuant to a management agreement with one or more Specified Holders relating to the Borrower (collectively, the “Management Fees”), in the case of clauses (A), (B) and (C) in an aggregate amount not to exceed in any calendar year the greater of (i) $20,000,000 and (ii) 1.5% of the Borrower’s Consolidated EBITDA in the prior calendar year;
(d) the Borrower may pay cash Dividends to the holders of its Equity Interests and, if Holdings is a holder of such Equity Interests, the proceeds thereof may be utilized by Holdings to pay cash Dividends to the holders of its Equity Interests in an amount not to exceed:
(i) so long as the Total Net Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Dividends, would not exceed 4.0 to 1.0, the then available Cumulative Credit;
(ii) so long as (A) the Total Net Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Dividends, would not exceed 3.5 to 1.0 and (B) Liquidity after giving effect to such Dividend shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends greater than or equal to $750,000,000, the quotient obtained by dividing: then available Annual Credit; and
(iii) so long as the Total Net Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Dividends, would not exceed 3.0 to 1.0, such additional amounts as the Borrower may determine (the cumulative amount of Dividends made after the Closing Date under this clause (iii) at any time that the Total Net Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Dividends, would exceed 2.0 to 1.0, referred to as the “Dividend Recapture Amount”); provided that (x) the product obtained by multiplying $1,000 by Dividends described in this clause (d) shall not be permitted if a rate per annum equal to Default is continuing at the rate date of interest payable by the Trust on the Trust Notes as of the Issue Date, by declaration or payment thereof or would result therefrom and (y) fourwith respect to any Dividend in an aggregate amount in excess of $50,000,000, on or prior to the date of any such Dividend pursuant to this Section 6.08(d), the Borrower shall deliver to the Administrative Agent an Officer’s Certificate specifying which clause of this Section 6.08(d) such Dividend is being made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied (in the case of Dividends pursuant to clause (i) and (ii) above) and the Total Net Leverage Ratio referred to above and, in the case of Dividends pursuant to clause (ii) above, the amount of Liquidity referred to therein;
(e) to the extent constituting a Dividend, payments permitted by Section 6.09(d) that do not relate to Equity Interests;
(f) the Closing Date Distribution;
(g) the Borrower may pay additional cash Dividends to Holdings the proceeds of which may be utilized by Holdings to pay cash Dividends to the holders of its Equity Interests in an aggregate amount not to exceed $75,000,000 after the Closing Date minus the amount of Investments made in reliance on Section 6.04(r)(v); provided that if an event the Dividends described in this clause (including a redemptiong) shall occur not be permitted if a Default is continuing at the date of declaration or payment thereof or would result therefrom;
(h) Dividends by any Company to any other Company that results in accrued are part of a Series of Cash Neutral Transactions; provided no Default has occurred and unpaid dividends for is continuing;
(i) following a partial Dividend Period becoming payableQualified IPO, Dividends by the dividend payable for any partial Dividend Periods shall be equal Borrower paid to Holdings (which may pay the proceeds thereof to the product obtained holders of its Equity Interests) or, in the case of a Qualified Borrower IPO, its other equity holders, of up to 6% of the net cash proceeds received by multiplying (or contributed to the capital of) the Borrower in or from such Qualified IPO; and
(j) Dividends to repurchase Equity Interests of Holdings or any direct or indirect parent entity (or following a Qualified Borrower IPO, Equity Interests of the Borrower) from current or former officers, directors or employees of the Borrower or any of its Restricted Subsidiaries or any direct or indirect parent entity (or permitted transferees of such current or former officers, directors or employees); provided, however, that the aggregate amount of such repurchases shall not exceed (i) $10,000,000 in any calendar year prior to completion of a Qualified IPO, or (ii) $15,000,000 in any calendar year following completion of a Qualified IPO (with unused amounts in any calendar year being permitted to be carried over for the next two succeeding calendar years up to a maximum of (A) $20,000,000 in the aggregate in any calendar year prior to completion of a Qualified IPO, or (B) $30,000,000 in the aggregate in any calendar year following completion of a Qualified IPO); provided, further, that such amount in any calendar year may be increased by an amount not to exceed (x) above the cash proceeds received by a fractionthe Borrower or any of its Restricted Subsidiaries from the sale of Equity Interests of the Borrower, the numerator of which is the actual number of days attributable Holdings or any parent entity to officers, directors or employees (to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, extent contributed to the payment Borrower (excluding any portion thereof included in the Cumulative Credit)), plus (y) the cash proceeds of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or key man life insurance policies in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendscalendar year.
Appears in 2 contracts
Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Dividends. The holders (a) At any time that the Leverage Ratio equals or exceeds 6.00:1.00, the U.S. Borrower will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the U.S. Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled U.S. Borrower may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out U.S. Borrower or to a Wholly-Owned Subsidiary of the monies U.S. Borrower;
(ii) any non-Wholly-Owned Subsidiary of the Corporation properly applicable U.S. Borrower may pay cash Dividends to its shareholders, members or partners generally so long as the payment 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 dividendsequity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential cash dividends equal of the various classes of equity interests in such Subsidiary); provided, however, that this Section 11.11 shall not limit the redemption or repurchase of equity interests of a shareholder, member or partner of any non-Wholly-Owned Subsidiary of the U.S. Borrower if such redemption or repurchase is permitted pursuant to the quotient obtained by dividing: Section 11.10.
(iii) so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate no Specified Default or Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default then exists or would exist immediately after giving effect thereto and (y) four; provided that if an event (including HHRI qualifies, or has taken all other actions necessary to qualify, as a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable“real estate investment trust” under the Code during any fiscal year of HHRI, the dividend payable for any partial Dividend Periods shall U.S. Borrower may pay quarterly cash Dividends (which may be equal based on estimates) to HHRI and all other holders of OP Units generally when and to the product obtained extent necessary for HHRI to distribute, and HHRI may so distribute, cash Dividends to its shareholders generally in an aggregate amount not to exceed the greater of (I) the greatest of (A) 100% of Cash Available for Distribution for such fiscal year, (B) 100% of Taxable Income and (C) the minimum amount necessary for HHRI to maintain its tax status as a real estate investment trust and to satisfy the distributions required to be made by multiplying Notice 88-19 under the amount in Code (or Treasury regulations issued pursuant thereto) by reason of HHRI making the election provided for therein and (II) at any time when, based upon the financial statements delivered pursuant to Section 10.11(a) or (b) and the U.S. Borrower’s estimation of the results of the current fiscal quarter, the Consolidated Interest Coverage Ratio is greater than 2.00:1:00, 85% of the Adjusted Funds From Operations for the current fiscal year;
(iv) so long as no Specified Default or Event of Default then exists or would result therefrom, the U.S. Borrower may pay cash Dividends to HHRI so long as the proceeds therefrom are promptly used by HHRI to pay (x) any Permitted Tax Payments at the time and to the extent actually due and payable (but without duplication of any tax payments permitted to be made pursuant to Section 11.11(a)(iii) above to satisfy the distribution required to be made by a fractionNotice 88-19 under the Code (or Treasury regulations issued pursuant thereto)) and (y) any general corporate and other overhead expenses and liabilities incurred by it to the extent not otherwise prohibited by this Agreement;
(v) so long as no Specified Default or Event of Default then exists or would result therefrom, the numerator U.S. Borrower may pay cash Dividends to HHRI in an aggregate amount not to exceed $10,000,000 for the Revolving Credit Period; and
(vi) the U.S. Borrower may pay cash Dividends to HHRI so long as HHRI promptly thereafter uses the proceeds of which is the actual number such Dividends to repurchase shares of days attributable to the partial Dividend Period its capital stock, and the denominator of which is 365Borrower may repurchase OP Units, subject in each case so long as (i) no Specified Default or Event of Default then exits or would result therefrom, (ii) the aggregate amount of all repurchases and redemptions made pursuant to this Section 11.11(a)(vi) in any applicable withholding tax. If on any Dividend Payment Date fiscal year of HHRI does not exceed an amount equal to 1% of Adjusted Total Assets determined at the dividend payable on such date is not paid in full on all time of declaration of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or Dividend (with any unused Roll Forward Amount from one fiscal year increasing the unpaid part thereof shall amount available to be paid on as a Dividend under this Section 11.11(a)(vi) in subsequent date fiscal years). Dividends paid during a period when the Leverage Ratio is less than 6.00:1.00 shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the baskets provided for in this Section 11.11(a) (as applicable) for purposes of determining basket availability only.
(b) At any time that the Leverage Ratio is less than 6.00:1.00, the U.S. Borrower and the Guarantors will not, and will not permit any of their Restricted Subsidiaries to, directly or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicableindirectly, authorize, declare, or pay any Dividends that would constitute a Restricted Payment that is prohibited under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsGoverning Senior Note Indenture.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts, Inc.), Credit Agreement (Host Hotels & Resorts L.P.)
Dividends. The holders Parent will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any Dividends, except that:
(a) each Restricted Subsidiary of Parent may make Restricted Payments to Parent and any Restricted Subsidiary of Parent;
(b) any Non-Wholly-Owned Subsidiary of Parent may pay Dividends to its shareholders, members or partners generally, so long as Parent or its respective Restricted Subsidiary which owns the Equity Interest in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Deferral Preferred SharesEquity Interest in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, Series-[·] shall be entitled to receive and the Corporation shall pay thereonif any, as and when declared by the board of directors out of the monies various classes of Equity Interests of such Restricted Subsidiary);
(c) Parent may (and may pay cash Dividends to any direct or indirect parent of Parent for the purpose of enabling any direct or indirect parent of Parent to) redeem, repurchase or otherwise acquire for value Equity Interests of Parent (or of such direct or indirect parent of Parent) following the death, disability, retirement or termination of employment of officers, directors or employees of Parent or any of its Restricted Subsidiaries, provided that the sum of the Corporation properly applicable aggregate amount of Dividends paid by Parent in reliance on this clause (c) shall not exceed $15,000,000 in any Fiscal Year (which shall increase to $20,000,000 subsequent to the payment consummation of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal an IPO) with unused amounts in any fiscal year being permitted to be carried over to the quotient obtained immediately succeeding fiscal year, plus any cash proceeds received by dividing: Parent or any of its Restricted Subsidiaries from key man life insurance policies;
(d) Parent may pay cash Dividends to any direct or indirect parent of Parent at the times and in the amounts necessary to enable such direct or indirect parent of Parent to pay their respective tax obligations, to the extent attributable to the business of Parent and its Restricted Subsidiaries; provided that (x) the product obtained amount of cash Dividends paid by multiplying $1,000 Parent pursuant to this clause (d) to enable any direct or indirect parent of Parent to pay Federal and state income and franchise taxes at any time shall not exceed the amount of such Federal and state income and franchise taxes actually owing by a rate per annum equal to such direct or indirect parent of Parent at such time for the rate respective period as determined in good faith by such direct or indirect parent of interest payable by the Trust on the Trust Notes as of the Issue Date, by Parent and (y) fourthe proceeds of such Dividends shall be used by such direct or indirect parent of Parent for the purposes described above in this clause (d);
(e) Parent may pay cash Dividends to any direct or indirect parent of Parent so long as the proceeds thereof are used by such direct or indirect parent of Parent solely to (i) pay operating expenses of such direct or indirect parent of Parent incurred in the ordinary course of business (including, without limitation, outside directors and professional fees, expenses and indemnities) and other similar corporate overhead costs and expenses in each case attributable to the ownership or operations of Parent and the Restricted Subsidiaries and (ii) pay cash Dividends to any direct or indirect parent of Parent for the purpose of paying (and so long as same are used to pay) operating expenses of such direct or indirect parent of Parent incurred in the ordinary course of business and other similar corporate overhead costs and expenses in each case attributable to the ownership or operations of Parent and the Restricted Subsidiaries;
(f) the Borrower may pay Dividends to Holdings (or any direct or indirect parent company thereof) at the times and in amounts necessary to enable Parent (or any direct or indirect parent company thereof) to make payments due under the Tax Receivable Agreement (and Parent (or such direct or indirect parent company) shall be permitted to make such payments);
(g) after an IPO, (i) any Dividend by Parent to pay listing fees and other costs and expenses payable by any direct or indirect parent of Parent that are attributable to being a publicly traded company and are reasonable and customary and (ii) additional Dividends in an aggregate amount in any Fiscal Year not to exceed an amount equal to 6.0% of the Market Capitalization;
(h) Parent may, in lieu of making direct cash payments to Sponsor and its Affiliates or the Advance Shareholders as otherwise permitted by Sections 9.06(g), (h), (i), (j) and (k), pay Dividends (including to any direct or indirect parent of Parent) in order to make the payments permitted by such Sections;
(i) if immediately before and immediately after giving effect to the respective Dividend, the First Lien Net Leverage Ratio for the Calculation Period most recently ended (calculated on a Pro Forma Basis) does not exceed 4.70:1.00, other Dividends in an aggregate amount not to exceed the Available Amount; provided that with respect to any Dividend made pursuant to this Section 9.03(i), no Event of Default has occurred and is continuing or would result therefrom;
(j) other Dividends, so long as the aggregate amount of all Dividends made pursuant to this Section 9.03(j) does not exceed $75,000,000;
(k) other Dividends so long as the Total Net Leverage Ratio for the Calculation Period most recently ended (calculated on a Pro Forma Basis) does not exceed 4.00:1.00;
(l) Parent and each of its Restricted Subsidiaries may declare and make Dividends payable solely in the Equity Interests of such Person (other than Disqualified Equity Interests);
(m) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if an event such Equity Interests represent a portion of the exercise price of such options or warrants;
(n) repurchases of Equity Interests in Parent (or any direct or indirect parent thereof) or any Restricted Subsidiary of Parent deemed to occur upon exercise or vesting of stock options, warrants, or other Equity Interests if such Equity Interests (i) represent all or a portion of the exercise price of such options or warrants, or (ii) are surrendered in connection with satisfying any federal, state, local, or foreign income tax obligation (including a redemptionwithholding in respect thereof) shall occur that results incurred in accrued connection with such exercise or vesting; and
(o) Parent or any Restricted Subsidiary of Parent may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for (ii) honor any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above conversion request by a fraction, the numerator holder of which is the actual number convertible Indebtedness and make cash payments in lieu of days attributable to the partial Dividend Period fractional shares in connection with any such conversion and the denominator of which is 365, subject may make payments on convertible Indebtedness in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsaccordance with its terms.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (AdvancePierre Foods Holdings, Inc.), Term Loan Credit Agreement (AdvancePierre Foods Holdings, Inc.)
Dividends. The holders Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) Subsidiaries of the Deferral Preferred SharesParent may pay Dividends to another member of the NCLC Group; provided that the Borrower shall procure that any Dividends or other distributions and interest paid or payable in connection with such Dividends or other distributions to NCL International, Series-[·] Ltd., NCL America Holdings, LLC or Arrasas Limited shall be entitled to receive and the Corporation shall pay thereon, as and when declared received promptly by the board Parent directly or indirectly by way of directors out Dividend;
(ii) the Parent may pay Dividends in respect of the monies tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the Corporation properly applicable NCLC Group or holder of the Parent’s Capital Stock with respect to income taxable as a result of any member of the payment NCLC Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any member of dividendsthe NCLC Group; and
(iii) at any time following the listing of the ordinary Capital Stock of the Parent on an Approved Stock Exchange, the Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on each January 1, 2010 and ending on the date prior to such Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: for which financial statements are available so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by no Default or Event or Default exists or would result from such Dividend and (y) four; at the time of such Dividend and after giving effect thereto the ratio of Total Net Funded Debt to Consolidated EBITDA for the four consecutive fiscal quarters last ended for which financial statements have been provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which Facility Agent pursuant to Section 9.01 is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-less than [·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends*].
Appears in 2 contracts
Samples: Credit Agreement (NCL CORP Ltd.), Credit Agreement (NCL CORP Ltd.)
Dividends. The holders Borrower will not, and will not permit any of its Restricted Subsidiaries to, authorize, declare or pay any Dividends with respect to the Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of the Deferral Preferred SharesBorrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to the Borrower or to other Restricted Subsidiaries of the Borrower which directly or indirectly own 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 Restricted 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, Series-[·] shall be entitled if any, of the various classes of Equity Interests of such Subsidiary);
(iii) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, the Borrower may pay cash Dividends to receive Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of such Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of the Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by the Borrower to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall pay thereonnot (net of any cash proceeds received by Holdings (but in no event from any Initial Public Offering) from issuances of its Equity Interests (other than to the extent included in the Available Amount) and contributed to the Borrower in connection with such redemption or repurchase), as and when declared in either case, exceed during any fiscal year of the Borrower, $30,000,000 (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by the board Borrower or any of its Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to the Borrower; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to the Borrower from members of management, officers, directors, employees of the Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to the Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and any other Parent Company shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary of the Borrower out of the monies proceeds of such offering promptly if such offering is completed;
(v) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) the Borrower may pay cash dividends or other distributions, or make loans or advances to, any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, the Borrower and its Restricted Subsidiaries;
(B) with respect to any taxable year (or portion thereof) ending after the Closing Date with respect to which the Borrower (a) is treated as a corporation for U.S. federal, state, and/or local income tax purposes and (b) is a member of a consolidated, combined or similar income tax group (a “Tax Group”) of which any Parent Company is the common parent, federal, state and local income Taxes (including minimum Taxes) (or franchise and similar Taxes imposed in lieu of such minimum Taxes) that are attributable to the taxable income of the Corporation properly applicable Borrower and its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (B) with respect to the Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(C) customary salary, bonus and other benefits payable to officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of the Borrower of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if such purchase or other acquisition had been made by the Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (A) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to the Borrower or any Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.02) into the Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchaser or other acquisition;
(G) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company directly attributable to the operations of the Borrower and its Restricted Subsidiaries; provided that the aggregate amount of Dividends made pursuant to subclauses (C), (D) and (G) of this clause (vi) shall not exceed $30,000,000 in any fiscal year;
(vii) reasonable and customary indemnities to directors, officers and employees of Holdings or any other Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;
(viii) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid to any other Parent Company) for payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal (x) obligations under or in respect of director and officer insurance policies to the quotient obtained by dividing: extent reasonably attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend used (i) to fund the Transaction, including Transaction Costs, and (ii) in order to satisfy indemnity and other similar obligations under the Acquisition Agreement;
(x) the product obtained Borrower may pay cash Dividends to Holdings (who may subsequently pay cash Dividends to any other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v), 10.06(vii) and 10.06(xii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date, of up to 6% per annum of the net cash proceeds contributed to the capital of the Borrower from any such Initial Public Offering;
(xiii) any Dividends to the extent the same are made solely with the Available Amount, so long as, solely to the extent clause (i)(B) of the definition of “Available Amount” is being utilized, at the time of, and after giving effect to such Dividend on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated Total Net Leverage Ratio does not exceed 4.50 to 1.00;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by multiplying the Borrower and the Guarantors; provided that the aggregate amount of such purchases, when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed $1,000 30,000,000;
(xv) the declaration and payment of Dividends or the payment of other distributions by the Borrower in an aggregate amount since the Closing Date, when aggregated with the amount expended in reliance on 10.07(a)(B)(iii), not to exceed $75,000,000;
(xvi) the Borrower and each Restricted Subsidiary may declare and make Dividend payments or other distributions payable solely in the Equity Interests of such Person so long as in the case of Dividend or other distribution by a rate per annum equal Restricted Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution;
(xvii) the Borrower may pay Dividends with the cash proceeds contributed to its common equity from the rate net cash proceeds of interest payable any equity issuance by any Parent Company, so long as, with respect to any such payments, no Event of Default shall have occurred and be continuing or would result therefrom; provided that the Trust on the Trust Notes as amount of any such cash proceeds that are utilized for any Dividend under this clause (xvii) will not be considered to be cash proceeds of Equity Interests for purposes of clause (a)(ii) of the Issue Datedefinition of “Available Amount”;
(xviii) the Borrower and any Restricted Subsidiary may pay Dividends within 60 days after the date of declaration thereof, by if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03; and
(xix) any Dividends, so long as (x) at the time of, and after giving effect to such Dividend, no Event of Default shall have occurred and be continuing and (y) four; provided that if an event (including on a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablePro Forma Basis, the dividend payable Consolidated Total Net Leverage Ratio does not exceed 3.25 to 1.00. In determining compliance with this Section 10.03 (and in determining amounts paid as Dividends pursuant hereto for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all purposes of the Deferral Preferred Sharesdefinition of Consolidated EBITDA and Consolidated Net Income), Series-[·] then issued and outstanding, such dividend amounts loaned or the unpaid part thereof shall be paid on a subsequent date or dates advanced to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the CorporationHoldings pursuant to Section 10.05(vi) shall, to the payment of the same. The holders of the Deferral Preferred Sharesextent such loan or advance remains unpaid, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required deemed to be deducted) and payment thereof shall satisfy such dividendscash Dividends paid to Holdings to the extent provided in said Section 10.05(vi).
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Vertiv Holdings Co), Term Loan Credit Agreement (Vertiv Holdings Co)
Dividends. The holders (a) At any time that the Leverage Ratio equals or exceeds 6.00:1.00, the U.S. Borrower will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the U.S. Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled U.S. Borrower may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out U.S. Borrower or to a Wholly-Owned Subsidiary of the monies U.S. Borrower;
(ii) any non-Wholly-Owned Subsidiary of the Corporation properly applicable U.S. Borrower may pay cash Dividends to its shareholders, members or partners generally so long as the payment 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 dividendsequity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential cash dividends equal to of the quotient obtained by dividing: various classes of equity interests in such Subsidiary);
(iii) so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate no Specified Default or Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default then exists or would exist immediately after giving effect thereto and (y) four; provided that if an event (including HMC qualifies, or has taken all other actions necessary to qualify, as a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable“real estate investment trust” under the Code during any fiscal year of HMC, the dividend payable for any partial Dividend Periods shall U.S. Borrower may pay quarterly cash Dividends (which may be equal based on estimates) to HMC and all other holders of OP Units generally when and to the product obtained extent necessary for HMC to distribute, and HMC may so distribute, cash Dividends to its shareholders generally in an aggregate amount not to exceed the greater of (I) the greatest of (A) 100% of Cash Available for Distribution for such fiscal year, (B) 100% of Taxable Income and (C) the minimum amount necessary for HMC to maintain its tax status as a real estate investment trust and to satisfy the distributions required to be made by multiplying Notice 88-19 under the amount in Code (or Treasury regulations issued pursuant thereto) by reason of HMC making the election provided for therein and (II) at any time when, based upon the financial statements delivered pursuant to Section 10.11(a) or (b) and the U.S. Borrower’s estimation of the results of the current fiscal quarter, the Consolidated Interest Coverage Ratio is greater than 2.00:1:00, 85% of the Adjusted Funds From Operations for the current fiscal year;
(iv) so long as no Specified Default or Event of Default then exists or would result therefrom, the U.S. Borrower may pay cash Dividends to HMC so long as the proceeds therefrom are promptly used by HMC to pay (x) any Permitted Tax Payments at the time and to the extent actually due and payable (but without duplication of any tax payments permitted to be made pursuant to Section 11.11(a)(iii) above to satisfy the distribution required to be made by a fractionNotice 88-19 under the Code (or Treasury regulations issued pursuant thereto)) and (y) any general corporate and other overhead expenses and liabilities incurred by it to the extent not otherwise prohibited by this Agreement;
(v) so long as no Specified Default or Event of Default then exists or would result therefrom, the numerator U.S. Borrower may pay cash Dividends to HMC in an aggregate amount not to exceed $10,000,000 for the Revolving Credit Period; and
(vi) the U.S. Borrower may pay cash Dividends to HMC so long as HMC promptly thereafter uses the proceeds of which is such Dividends to repurchase shares of its capital stock and/or the actual number of days attributable to QUIPs and/or redeem the partial Dividend Period QUIPs Debt, and the denominator of which is 365Borrower may repurchase OP Units, subject in each case so long as (i) no Specified Default or Event of Default then exits or would result therefrom, (ii) the aggregate amount of all repurchases and redemptions made pursuant to this Section 11.11(a)(vi) in any applicable withholding tax. If on any Dividend Payment Date fiscal year of HMC does not exceed an amount equal to 1% of Adjusted Total Assets determined at the dividend payable on such date is not paid in full on all time of declaration of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or Dividend (with any unused Roll Forward Amount from one fiscal year increasing the unpaid part thereof shall amount available to be paid on as a Dividend under this Section 11.11(a)(vi) in subsequent date fiscal years). Dividends paid during a period when the Leverage Ratio is less than 6.00:1.00 shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the baskets provided for in this Section 11.11(a) (as applicable) for purposes of determining basket availability only.
(b) At any time that the Leverage Ratio is less than 6.00:1.00, the U.S. Borrower and the Guarantors will not, and will not permit any of their Restricted Subsidiaries to, directly or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicableindirectly, authorize, declare, or pay any Dividends that would constitute a Restricted Payment that is prohibited under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsGoverning Senior Note Indenture.
Appears in 2 contracts
Samples: Credit Agreement (Host Marriott L P), Credit Agreement (Host Marriott Corp/)
Dividends. The holders Borrowers will not, and will not permit any of its Restricted Subsidiaries to, authorize, declare or pay any Dividends with respect to Lead Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of a Borrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Lead Borrower or to other Restricted Subsidiaries of Lead Borrower which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of Lead Borrower may declare and pay cash Dividends to its shareholders generally so long as Lead Borrower or its Restricted 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 Deferral Preferred SharesEquity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, Series-[·] shall be entitled if any, of the various classes of Equity Interests of such Subsidiary);
(iii) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Lead Borrower may pay cash Dividends to receive Holdings to allow Holdings to pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Holdings or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of Lead Borrower and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends made by the Borrowers to Holdings pursuant to this clause (iii), and the Corporation aggregate amount paid by Holdings or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall not (net of any cash proceeds received by Holdings (but in no event from any Initial Public Offering) from issuances of its Equity Interests and contributed to Lead Borrower in connection with such redemption or repurchase), in either case, exceed during any fiscal year of Lead Borrower, the greater of $11,250,000 and 1.00% of Consolidated Total Assets (measured at the time of such Dividend) (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the succeeding two fiscal years pursuant to this clause (iii)); (B) such amount in any calendar year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Lead Borrower or any of the Restricted Subsidiaries after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Holdings, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to Lead Borrower; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I); and (C) cancellation of Indebtedness owing to Lead Borrower from members of management, officers, directors, employees of Lead Borrower or any of its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any other Parent Company will not be deemed to constitute a Dividend for purposes of this Agreement;
(iv) Borrowers may pay thereoncash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid (including as a Dividend by Holdings) to any other Parent Company) to pay expenses incurred by Holdings or any other Parent Company in connection with offerings, registrations, or exchange listings of equity or debt securities and maintenance of same (A) where the net proceeds of such offering are to be received by or contributed to any Borrower, (B) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or loaned, or (C) otherwise on an interim basis prior to completion of such offering so long as Holdings and when declared by any other Parent Company shall cause the board amount of directors such expenses to be repaid to such Borrower or such Restricted Subsidiary out of the monies proceeds of such offering promptly if such offering is completed;
(v) Borrowers may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid (including as a Dividend by Holdings) to any other Parent Company) to pay costs (including all professional fees and expenses) incurred by Holdings or any other Parent Company in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Securities Exchange Act or the respective rules and regulations promulgated thereunder;
(vi) Borrowers may pay cash dividends or other distributions, or make loans or advances to any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication:
(A) franchise Taxes (and other fees and expenses) required to maintain their existence to the extent such Taxes, fees and expenses are reasonably attributable to the operations of Holdings, Lead Borrower and its Restricted Subsidiaries;
(B) with respect to any taxable year (or portion thereof) ending after the Closing Date with respect to which Holdings or any Borrower (a) is treated as a corporation for U.S. federal, state, and/or local income tax purposes and (b) is a member of a consolidated, combined or similar income tax group (a “Tax Group”) of which Holdings or any other Parent Company is the common parent, federal, state and local income Taxes (including minimum Taxes) (or franchise and similar Taxes imposed in lieu of such minimum Taxes) that are attributable to the taxable income of Lead Borrower and its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that Lead Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (B) with respect to the Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid by such Unrestricted Subsidiary to a Borrower or the Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes;
(C) customary salary, bonus and other benefits payable to officers and employees of any Parent Company to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operations of Lead Borrower and its Restricted Subsidiaries;
(D) general corporate operating and overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties) of any Parent Company to the extent such costs and expenses are reasonably attributable to the ownership or operations of Lead Borrower and its Restricted Subsidiaries;
(E) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Lead Borrower or any Parent Company;
(F) the purchase or other acquisition by Holdings or any other Parent Company of Lead Borrower of all or substantially all of the Corporation properly applicable to the payment property and assets or business of dividendsany Person, on each Dividend Payment Dateor of assets constituting a business unit, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate line of interest payable by the Trust on the Trust Notes as business or division of such Person, or of all of the Issue Date, by (y) fourEquity Interests in a Person; provided that if an event such purchase or other acquisition had been made by Lead Borrower, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (A) such dividend, distribution, loan or advance shall be made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to be contributed to Lead Borrower or any Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.02) into Lead Borrower or any Restricted Subsidiary of the Person formed or acquired in order to consummate such purchase or other acquisition; and
(G) any customary fees and expenses related to any unsuccessful equity offering by any Parent Company directly attributable to the operations of Lead Borrower and its Restricted Subsidiaries;
(vii) reasonable and customary indemnities to directors, officers and employees of Holdings or any Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Lead Borrower and the Restricted Subsidiaries;
(viii) Borrowers may pay cash Dividends to Holdings so long as the proceeds thereof are promptly used by Holdings (or subsequently paid (including as a redemptionDividend by Holdings) shall occur that results in accrued and unpaid dividends to any other Parent Company) for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in payment of (x) above by a fraction, obligations under or in respect of director and officer insurance policies to the numerator of which is the actual number of days extent reasonably attributable to the partial Dividend Period ownership or operation of Lead Borrower and the denominator Restricted Subsidiaries or (y) indemnification obligations owing to the Sponsor and Sponsor Affiliates under the Advisory Agreement;
(ix) any Dividend used (i) to fund the Transaction, including Transaction Costs, and (ii) in order to satisfy deferred purchase price, earn-outs and contingent payments in respect of which is 365, subject any amounts due and owing as provided for in each case the Acquisition Agreement;
(x) Borrowers may pay cash Dividends to Holdings (who may subsequently pay cash Dividends to any applicable withholding tax. If other Parent Company) so long as the proceeds thereof are used to pay the Sponsor or Sponsor Affiliate fees, expenses and indemnification payments that are then permitted to be paid pursuant to Sections 10.06(v), 10.06(vii) and 10.06(xii);
(xi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards;
(xii) a Dividend to any Parent Company to fund a payment of dividends on such Parent Company’s common stock following an Initial Public Offering of such common stock after the Closing Date not to exceed, in any fiscal year, the greater of (x) 5% of such Parent Company’s market capitalization and (y) 6% of the net cash proceeds contributed to the capital of any Borrower from any such Initial Public Offering;
(xiii) the Borrowers may pay any Dividend Payment so long as the Distribution Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Dividend;
(xiv) purchases of minority interests in Restricted Subsidiaries that are not Wholly-Owned Subsidiaries by the Borrowers and the Guarantors; provided that the aggregate amount of such purchases, when added to the aggregate amount of Investments pursuant to Section 10.05(xvii), shall not exceed the greater of $11,250,000 and 1.00% of Consolidated Total Assets (measured at the time of such Dividend);
(xv) the declaration and payment of Dividends or the payment of other distributions by the Borrowers in an aggregate amount since the Closing Date not to exceed the dividend greater of $100,000,000 and 8.50% of Consolidated Total Assets (measured at the time of such Dividend);
(xvi) Lead Borrower and its Restricted Subsidiaries may declare and make Dividend payments or other distributions payable on solely in the Equity Interests of such date is not paid Person so long as in full on all the case of the Deferral Preferred SharesDividend or other distribution by a Restricted Subsidiary, Series-[·] then issued and outstanding, Lead Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution;
(xvii) Lead Borrower may pay Dividends with the unpaid part thereof shall be paid on a subsequent date or dates cash proceeds contributed to be determined its common equity from the net cash proceeds of any equity issuance by the board any Parent Company, so long as, with respect to any such payments, no Event of directors on which the Corporation Default shall have sufficient monies properly applicableoccurred and be continuing or would result therefrom; and
(xviii) Lead Borrower and its Restricted Subsidiaries may pay Dividends within 60 days after the date of declaration thereof, under if at the provisions date of any applicable law declaration of such payment, such payment would have complied with another provision of this Section 10.03. In determining compliance with this Section 10.03 (and under the provisions of any trust indenture securing bonds, debentures or other securities in determining amounts paid as Dividends pursuant hereto for purposes of the Corporationdefinitions of “Consolidated EBITDA” and “Consolidated Net Income”), amounts loaned or advanced to Holdings pursuant to Section 10.05(vi) shall, to the payment of the same. The holders of the Deferral Preferred Sharesextent such loan or advance remains unpaid, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required deemed to be deducted) and payment thereof shall satisfy such dividendscash Dividends paid to Holdings to the extent provided in said Section 10.05(vi).
Appears in 2 contracts
Samples: Revolving Credit Agreement (VERRA MOBILITY Corp), Revolving Credit Agreement (VERRA MOBILITY Corp)
Dividends. The holders Borrower will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Borrower or to any other Wholly-Owned Subsidiary of the monies Borrower which is a Credit Party and any Subsidiary of the Corporation properly applicable Borrower which is not a Guarantor also may pay cash Dividends to a Wholly-Owned Subsidiary of the payment Borrower;
(ii) any non-Wholly-Owned Subsidiary of dividendsthe Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interest in such 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 pay Dividends on each Dividend Payment Dateits Qualified Preferred Interests solely through the issuance of additional shares of its Qualified Preferred Interests but not in cash; and
(iv) the Borrower may pay Dividends, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: provided that (x) no Default or Event of Default exists at the product obtained by multiplying $1,000 by a rate per annum equal to the rate time of interest payable by the Trust on the Trust Notes as of the Issue Date, by payment thereof or after giving effect thereto and (y) four; provided that if an event the aggregate amount of Dividends paid pursuant to this clause (including a redemptioniv) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be not exceed an amount equal to 50% of the product obtained by multiplying Consolidated Net Income of the amount in (x) above by a fractionBorrower for the period commencing on January 1, 2008 and ending on the numerator last day of which is the actual number of days attributable fiscal quarter ended prior to the partial Dividend Period and the denominator date of payment for which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall financial statements have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, been provided to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled Administrative Agent pursuant to any dividends other than Section 9.01(a) or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsb).
Appears in 2 contracts
Samples: Credit Agreement (Trico Marine Services Inc), Credit Agreement (Trico Marine Services Inc)
Dividends. The holders a) At any time that the Leverage Ratio equals or exceeds 6.00:1.00, the Company will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Company or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Company may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Company or to a Wholly-Owned Subsidiary of the monies Company;
(ii) any non-Wholly-Owned Subsidiary of the Corporation properly applicable Company may pay cash Dividends to its shareholders, members or partners generally so long as the payment Company 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 dividendsequity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential cash dividends equal of the various classes of equity interests in such Subsidiary); provided, however, that this Section 7.11 shall not limit the redemption or repurchase of equity interests of a shareholder, member or partner of any non-Wholly-Owned Subsidiary of the Company if such redemption or repurchase is permitted pursuant to the quotient obtained by dividing: Section 7.10;
(iii) so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate no Specified Default or Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default then exists or would exist immediately after giving effect thereto and (y) four; provided that if an event (including HHRI qualifies, or has taken all other actions necessary to qualify, as a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable“real estate investment trust” under the Code during any fiscal year of HHRI, the dividend payable for any partial Dividend Periods shall Company may pay quarterly cash Dividends (which may be equal based on estimates) to HHRI and all other holders of OP Units generally when and to the product obtained extent necessary for HHRI to distribute, and HHRI may so distribute, cash Dividends to its shareholders generally in an aggregate amount not to exceed the greater of (I) the greatest of (A) 100% of Cash Available for Distribution for such fiscal year, (B) 100% of Taxable Income and (C) the minimum amount necessary for HHRI to maintain its tax status as a real estate investment trust and to satisfy the distributions required to be made by multiplying Notice 88-19 under the amount in Code (or Treasury regulations issued pursuant thereto) by reason of HHRI making the election provided for therein and (II) at any time when, based upon the financial statements delivered pursuant to Section 6.11(a) or (b) and the Company’s estimation of the results of the current fiscal quarter, the Consolidated Interest Coverage Ratio is greater than 2.00:1:00, 85% of the Adjusted Funds From Operations for the current fiscal year;
(iv) so long as no Specified Default or Event of Default then exists or would result therefrom, the Company may pay cash Dividends to HHRI so long as the proceeds therefrom are promptly used by HHRI to pay (x) any Permitted Tax Payments at the time and to the extent actually due and payable (but without duplication of any tax payments permitted to be made pursuant to Section 7.11(a)(iii) above to satisfy the distribution required to be made by a fractionNotice 88-19 under the Code (or Treasury regulations issued pursuant thereto)) and (y) any general corporate and other overhead expenses and liabilities incurred by it to the extent not otherwise prohibited by this Agreement;
(v) so long as no Specified Default or Event of Default then exists or would result therefrom, the numerator Company may pay cash Dividends to HHRI in an aggregate amount not to exceed $10,000,000 for the Availability Period; and
(vi) the Company may pay cash Dividends to HHRI so long as HHRI promptly thereafter uses the proceeds of which is the actual number such Dividends to repurchase shares of days attributable to the partial Dividend Period its capital stock, and the denominator of which is 365Company may repurchase OP Units, subject in each case so long as (x) no Specified Default or Event of Default then exits or would result therefrom, (y) the aggregate amount of all repurchases and redemptions made pursuant to this Section 7.11a)(v) in any applicable withholding tax. If on any Dividend Payment Date fiscal year of HHRI does not exceed an amount equal to 1% of Adjusted Total Assets determined at the dividend payable on such date is not paid in full on all time of declaration of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or Dividend (with any unused Roll Forward Amount from one fiscal year increasing the unpaid part thereof shall amount available to be paid on as a Dividend under this Section 7.11(a)(vi) in subsequent date fiscal years). Dividends paid during a period when the Leverage Ratio is less than 6.00:1.00 shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the baskets provided for in this Section 7.11(a) (as applicable) for purposes of determining basket availability only.
b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company and the Guarantors will not, and will not permit any of their Restricted Subsidiaries to, directly or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicableindirectly, authorize, declare, or pay any Dividends that would constitute a Restricted Payment that is prohibited under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsGoverning Senior Note Indenture.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts, Inc.), Credit Agreement (Host Hotels & Resorts, Inc.)
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Company, except that the following shall be permitted:
(a) Dividends by any Company to Borrower or any Guarantor that is a Wholly Owned Subsidiary of Borrower;
(b) payments to Borrower to permit Borrower, and the subsequent use of such payments by Borrower, to repurchase or redeem Qualified Capital Stock of Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions and payments shall not exceed, in any fiscal year, $1,000,000; and
(c) the redemption or other repayment by Borrower of the Deferral netASPx Seller Convertible Preferred SharesStock in accordance with the terms thereof as in effect on the Effective Date with the Net Cash Proceeds from (i) the issuance of Permitted Subordinated Indebtedness and/or (ii) the issuance of common stock of Borrower, Series-[·] provided that (x)(I) no Default then exists or would result therefrom; and (II) after giving effect to such redemption or other repayment on a Pro Forma Basis, (A) Borrower shall be entitled to receive in compliance with all covenants set forth in Sections 6.10(a) and the Corporation shall pay thereon, (b) as and when declared by the board of directors out of the monies most recent Test Period (assuming (x) for purposes of Section 6.10, that such transaction had occurred on the Corporation properly applicable first day of such relevant Test Period) and (y) in the case of any redemption or other repayment with the Net Cash Proceeds of Permitted Subordinated Indebtedness, concurrently with such redemption or other repayment, Borrower shall prepay pursuant to Section 2.10(a) outstanding Loans in an aggregate principal amount equal to the Net Cash Proceeds applied to redeem or otherwise repay netASPx Seller Convertible Preferred Stock; and
(d) the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes netASPx Seller Convertible Preferred Stock in kind (and not in cash) in accordance with the terms thereof as of in effect on the Issue Effective Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends.
Appears in 2 contracts
Samples: Credit Agreement (Navisite Inc), Credit Agreement (Navisite Inc)
Dividends. The holders At any time that the Leverage Ratio equals or exceeds 6.00:1.00, the Company will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Company or any of its Subsidiaries, except that:
(a) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Company may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Company or to a Wholly-Owned Subsidiary of the monies Company;
(b) any non-Wholly-Owned Subsidiary of the Corporation properly applicable Company may pay cash Dividends to its shareholders, members or partners generally so long as the payment Company 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 dividendsequity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential cash dividends equal of the various classes of equity interests in such Subsidiary); provided, however, that this Section 7.11 shall not limit the redemption or repurchase of equity interests of a shareholder, member or partner of any non-Wholly-Owned Subsidiary of the Company if such redemption or repurchase is permitted pursuant to the quotient obtained by dividing: Section 7.10;
(c) so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate no Specified Default or Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default then exists or would exist immediately after giving effect thereto and (y) four; provided that if an event (including HHRI qualifies, or has taken all other actions necessary to qualify, as a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable“real estate investment trust” under the Code during any fiscal year of HHRI, the dividend payable for any partial Dividend Periods shall Company may pay quarterly cash Dividends (which may be equal based on estimates) to HHRI and all other holders of OP Units generally when and to the product obtained extent necessary for HHRI to distribute, and HHRI may so distribute, cash Dividends to its shareholders generally in an aggregate amount not to exceed the greater of (I) the greatest of (A) 100% of Cash Available for Distribution for such fiscal year, (B) 100% of Taxable Income, (C) the minimum amount necessary for HHRI to maintain its tax status as a real estate investment trust and to satisfy the distributions required to be made pursuant to Treasury regulations issued under Section 337(d) of the Code by multiplying reason of HHRI making the election provided for therein and (D) the amount necessary for HHRI to avoid income or excise tax under the Code and (II) at any time when, based upon the financial statements delivered pursuant to Section 6.11(a) or (b) and the Company’s estimation of the results of the current fiscal quarter, the Consolidated Interest Coverage Ratio is greater than 2.00:1:00, 85% of the Adjusted Funds From Operations for the current fiscal year; provided, however, that notwithstanding the existence of an Event of Default or the occurrence of an Event of Default immediately after giving effect thereto, the amounts described in clause (C) above may be paid so long as no Event of Default under Section 8.01(a) or Section 8.01(f) then exists or would exist immediately after giving effect thereto;
(d) the Company may pay cash Dividends to HHRI so long as the proceeds therefrom are promptly used by HHRI to pay (x) any Permitted Tax Payments at the time and to the extent actually due and payable (but without duplication of any tax payments permitted to be made pursuant to Section 7.11(c) above to satisfy the distribution required to be made pursuant to Treasury regulations issued under Section 337(d) of the Code) and (y) any general corporate and other overhead expenses and liabilities incurred by a fractionit to the extent not otherwise prohibited by this Agreement;
(e) so long as no Specified Default or Event of Default then exists or would result therefrom, the numerator Company may pay cash Dividends to HHRI in an aggregate amount not to exceed $10,000,000 for the Availability Period; and
(f) the Company may pay cash Dividends to HHRI so long as HHRI promptly thereafter uses the proceeds of which is the actual number such Dividends to repurchase shares of days attributable to the partial Dividend Period its capital stock, and the denominator of which is 365Company may repurchase OP Units, subject in each case so long as (x) no Specified Default or Event of Default then exits or would result therefrom, (y) the aggregate amount of all repurchases and redemptions made pursuant to this Section 7.11(f) in any applicable withholding tax. If on any Dividend Payment Date fiscal year of HHRI does not exceed an amount equal to 1% of Adjusted Total Assets determined at the dividend payable on such date is not paid in full on all time of declaration of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or Dividend (with any unused Roll Forward Amount from one fiscal year increasing the unpaid part thereof shall amount available to be paid on as a Dividend under this Section 7.11(f) in subsequent date or dates to fiscal years). Dividends paid during a period when the Leverage Ratio is less than 6.00:1.00 shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be determined by counted against the board baskets provided for in this Section 7.11 (as applicable) for purposes of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsdetermining basket availability only.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts, Inc.)
Dividends. The holders Declare or pay such dividend (other than --------- dividends payable solely in (i) common stock of the Deferral Preferred Shares, Series-[·] shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, Person making such dividend or (ii) the unpaid part thereof shall same class of Equity Ownership Interest of the Person making such dividend on which such dividend is being declared or paid) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Ownership Interest of the Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or assets, or in obligations of the Borrower or any Subsidiary or enter into or incur any Derivatives Obligations or other transaction with any financial institution, commodities or stock exchange (a "Derivatives Counterparty") obligating it to make payments to such Derivatives Counterparty as a result of any change in market value of its Equity Ownership Interests (collectively, "Dividends"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Subsidiary Guarantor;
(b) so long as no Default under Sections 7.01 and 7.05 or Event of Default exists or would result therefrom, the Borrower may (i) pay regularly accruing cash Dividends on the New Preferred Stock not to exceed $29,250,000 per fiscal year of the Borrower, with such Dividends to be paid on in accordance with the terms of the certificate of designation therefor, (ii) redeem up to $300 million of New Preferred Stock at the stated amount thereof plus accrued but unpaid dividends thereon with the excess proceeds of a subsequent rights offering of additional shares of New Preferred Stock, plus pay an associated premium of up to 2%, and (iii) redeem New Preferred Stock with the proceeds of Asset Dispositions of Arcadian Hotels in accordance with the requirements of the Securities Purchase Agreement;
(c) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to the holders of its Equity Ownership Interests generally, so long as the Borrower or its respective Subsidiary which owns the Equity Ownership Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative economic 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);
(d) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may purchase the Borrower's common stock or common stock options from present or former officers or employees of the Borrower or any Subsidiary upon the death, disability or termination of employment of such officer or employee, provided, that the aggregate amount -------- of payments under this paragraph (d) after the date hereof (net of any proceeds received by the Borrower after the date hereof in connection with resales of any common stock or dates common stock options so purchased) shall not exceed $1,000,000; and
(e) Patriot OP and Wyndham Partnership may redeem outstanding OP Units, provided that any such redemptions to be determined by made in cash may only be made so long as no Default under Sections 7.01 or 7.05 or Event of Default exists or would result therefrom. Notwithstanding the board foregoing, any payments made in respect of directors on which the Corporation shall have sufficient monies properly applicableindemnity obligations, under the provisions of any applicable law purchase price adjustments and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, similar payments pursuant to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] Securities Purchase Agreement shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsconsidered Dividends.
Appears in 2 contracts
Samples: Increasing Rate Note Purchase and Loan Agreement (Wyndham International Inc), Credit Agreement (Wyndham International Inc)
Dividends. The It will not, and will not permit any of its Subsidiaries to, declare or pay any dividends or make distributions (other than dividends or distributions payable solely in its Equity Interests (other than Disqualified Equity Interests)) or return any capital to its equity holders or make any other distribution, payment or delivery of property or cash to its equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any of its Equity Interests or Equity Interests of any direct or indirect parent thereof now or hereafter outstanding, or set aside any funds for any of the Deferral Preferred Sharesforegoing purposes, Series-[·] shall be entitled or permit any of its Subsidiaries to receive and the Corporation shall pay thereonpurchase or otherwise acquire for consideration any Equity Interests of KCMH, as and when declared by the board of directors out now or hereafter outstanding (all of the monies of the Corporation properly applicable to the payment of foregoing, “dividends”), on each Dividend Payment Date, fixed cumulative preferential cash provided that KCMH and any Subsidiary may pay dividends equal to the quotient obtained by dividing: if (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate immediately before and after paying such dividend, no (1) Default or (2) Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default shall have occurred and be continuing and (y) fourthe Debt to Equity Ratio is less than or equal to [**] to 1.00 after giving pro forma effect thereto. The limitations set forth in the immediately preceding sentence (other than subclause (x)(2) in the proviso thereto) shall not apply to any of the following items so long as KCMH is in compliance with Section 6.03 after giving pro forma effect thereto:
(i) it may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests (other than Disqualified Equity Interests) or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests (other than Disqualified Equity Interests), provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby;
(ii) it may pay dividends, the proceeds of which will be used to pay (or to pay dividends to allow any direct or indirect parent of KCMH to pay (including to the individual owners of any direct or indirect parent of KCMH)) the tax liability of such parent and the individual owners of any direct or indirect parent, determined at the highest rate combined federal, state and local income tax rate applicable to an individual resident in New York City, attributable to KCMH or its Subsidiaries determined as if KCMH and its Subsidiaries filed separately;
(iii) it or any of its Subsidiaries may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion; and
(iv) any Subsidiary of KCMH may pay dividends to its direct parent; provided that if an event (including a redemption) shall occur that results in accrued and unpaid any such dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above are paid by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstandingnon-Wholly-Owned Subsidiary, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer ratably based on the equity holder’s interests therein (or by cheque any other amount more favorable to KCMH), provided further that if the proceeds of any outstanding Loans or on behalf Letters of Credit have been used for an Investment in such non-Wholly-Owned Subsidiary, any cash dividends paid to such parent shall be applied to prepay such Loans or cash collateralize such Letters of Credit if no Loans are outstanding, at the option of the Corporation payable in lawful money Administrative Agent, without application of Section 3.12 or at the end of the United States next Interest Period(s). [**] = Certain information contained in this document, marked by “[**]” has been excluded because it is both (less any tax required i) not material and (ii) would likely cause competitive harm to be deducted) and payment thereof shall satisfy such dividendsthe registrant if publicly disclosed.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (KKR & Co. Inc.), Revolving Credit Agreement (KKR & Co. Inc.)
Dividends. The holders And will not permit any of the Deferral Preferred Shares, Series-[·] shall be entitled its Significant Subsidiaries to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) enter into, incur or permit to exist any agreement or other arrangement that explicitly prohibits or restricts the product obtained payment by multiplying $1,000 any of its Significant Subsidiaries of dividends or other distributions with respect to any shares of its Capital Stock; provided that the foregoing shall not prohibit financial incurrence, maintenance and similar covenants that indirectly have the practical effect of prohibiting or restricting the ability of a Significant Subsidiary to make such payments or provisions that require that a certain amount of capital be maintained, or prohibit the return of capital to shareholders above certain dollar limits; provided further, that the foregoing shall not apply to (i) restrictions and conditions imposed by a rate per annum equal to the rate of interest payable law or by the Trust this Agreement, (ii) restrictions and conditions existing on the Trust Notes as date hereof, any amendment or modification thereof (other than an amendment or modification expanding the scope of any such restriction or condition and any restrictions or conditions) that (x) replace restrictions or conditions existing on the Issue Date, by date hereof and (y) four; provided that if an event are substantially similar to such existing restriction or condition, (iii) restrictions (including any extension of such restrictions that does not expand the scope of any such restrictions) existing at the time at which any such Subsidiary first becomes a redemptionSignificant Subsidiary, so long as such restriction was in existence prior to such time in accordance with the other provisions of this Agreement and was not agreed to or incurred in contemplation of such change of status and (iv) shall occur any restrictions with respect to a Significant Subsidiary imposed pursuant to an agreement that results has been entered into in accrued and unpaid dividends for connection with a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator disposition of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all or substantially all of the Deferral Preferred SharesCapital Stock or assets of such Subsidiary and (y) declare or make, Series-[·] then issued or agree to pay or make, directly or indirectly, any Restricted Payment, except (a) the Borrower may declare and outstandingpay dividends with respect to its common Capital Stock payable solely in additional shares of its common stock, such dividend or (b) the unpaid part thereof shall be paid on a subsequent date or dates Borrower may make Restricted Payments pursuant to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures in accordance with stock option plans or other securities benefit plans for management, officers, directors or employees of the Corporation, to Borrower and (c) the payment Borrower may declare and pay dividends in an amount for any fiscal quarter of the same. The holders Borrower not to exceed $0.16 per share of common Capital Stock of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsBorrower.
Appears in 1 contract
Dividends. The holders Company will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Company or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Company may pay Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by Company or (y) fourany Wholly-Owned Subsidiary of the Company;
(ii) any non-Wholly-Owned Subsidiary of the Company may pay cash Dividends to its shareholders or equity owners generally so long as the Company or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interest 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); and
(iii) the Company may pay cash Dividends so long as (a) no Default or Event of Default is in existence at such time or would result therefrom and (b) the amount of such Dividend, when added to the aggregate amount of Dividends made pursuant to this clause (iii) after the Restatement EffectiveClosing Date and the aggregate amounts paid pursuant to Section 8.05(xv) and (xviii) after the Restatement EffectiveClosing Date, would not exceed the Permitted DividendAvailable Amount in effect at such time; provided that, with respect to any Dividend made pursuant to this clause (iii), the Total Net Leverage Ratio (calculated on a pro forma basis) is less than or equal to 3.50:1.00;
(iv) the Company and any of its Subsidiaries may declare and pay Dividends payable solely in the common stock or other Capital Stock that if is not Disqualified Stock of such Person; and
(v) so long as no Default or Event of Default has occurred and is continuing, the Company and any of its Subsidiaries may make Dividends in an event amount not to exceed $5,000,000 per fiscal year to pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock (other than Disqualified Stock) of the Company pursuant to and in accordance with employment contracts, stock option plans or other benefit plans or similar arrangements for consultants, management (including a redemptiondirectors and officers) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all or employees of the Deferral Preferred Shares, Series-[·] then issued Company and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board any of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsits Subsidiaries.
Appears in 1 contract
Dividends. The holders of the Deferral Preferred SharesUnless a Default has occurred and is continuing, Series-[·] shall each Pledgor will be entitled to receive any and all dividends and other forms of distribution on the Pledged Collateral of such Pledgor which it is otherwise entitled to receive, but any and all stock and/or liquidating dividends, distributions of property, returns of capital or other distributions made on or in respect of the Pledged Collateral of such Pledgor, whether resulting from a subdivision, combination or reclassification of the outstanding capital stock of any Issuer or received in exchange for the Pledged Collateral of such Pledgor or any part thereof or as a result of any amalgamation, merger, consolidation, acquisition or other exchange of property to which any Issuer may be a party or otherwise, and any and all cash and other property received in exchange for any Pledged Collateral of such Pledgor, will be and become part of the Pledged Collateral of such Pledgor subject to the Charges created by this Agreement and, if received by such Pledgor, unless otherwise applied by such Pledgor in a manner expressly permitted by the Lender, will immediately be delivered to the Lender or its nominee (accompanied, if appropriate, by proper and duly executed instruments of assignment or transfer in accordance with the Lender's instructions) to be held subject to the terms of this Agreement; and if any of the Pledged Collateral of any such Pledgor has been registered in the name of the Lender or its nominee, the Lender will execute and deliver (or cause to be executed and delivered) to such Pledgor all such dividend orders and other instruments as such Pledgor may request for the purpose of enabling such Pledgor to receive the dividends or other payments which such Pledgor is authorized to receive and retain pursuant to this Section. If a Default has occurred and is continuing, all rights of any Pledgor pursuant to this Section will cease and the Corporation shall pay thereon, as Lender will have the sole and when declared exclusive right and authority to receive and retain the cash dividends and other forms of cash distribution which such Pledgor would otherwise be authorized to retain pursuant to this Section. Any money and other property paid over to or received by the board of directors out of the monies of the Corporation properly applicable Lender pursuant to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any this Section will be retained by the Lender as additional Pledged Collateral of the applicable law Pledgor and under be applied in accordance with the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsthis Agreement.
Appears in 1 contract
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to Borrower and its Subsidiaries, except that the following shall be permitted:
(a) Dividends by any Company (i) to Borrower or any Subsidiary Guarantor and (ii) to any Subsidiary that is not a Subsidiary Guarantor, provided that any such Dividend under this clause (ii) is either (1) paid only in kind or (2) if paid in cash, limited to the applicable Subsidiary’s pro rata equity interests and is paid to all shareholders on a pro rata basis;
(b) Borrower and each Subsidiary of Borrower may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Capital Stock) of such Person;
(c) Borrower may make Dividends with the Net Cash Proceeds actually received from any substantially concurrent sale or issuance of Equity Interests (other than Disqualified Capital Stock) of Borrower;
(d) to the extent constituting Dividends (other than Dividends with respect to the DR Systems Preferred Stock or any Replacement Preferred Stock), Borrower and its Subsidiaries may enter into transactions expressly permitted by Section 6.04, 6.05 or 6.06;
(e) so long as no Event of Default has occurred and is continuing or could reasonably be expected to result immediately therefrom, repurchases, redemptions or other acquisitions of Qualified Capital Stock held by current or former officers, directors or employees (or their transferees, family members, spouse or former spouse, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service or to make payments on Indebtedness issued to buy such Qualified Capital Stock upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions and payments shall not exceed, in any fiscal year, the sum of (i) $2,000,000, plus (ii) the amount of any Net Cash Proceeds received by or contributed to Borrower from the issuance and sale since the issue date of Qualified Capital Stock of Borrower to officers, directors or employees of any Company that have not been used to make any repurchases, redemptions or payments under this Section 6.08(e) (and have not been included in the Cumulative Amount), plus (iii) the net cash proceeds of any “key-man” life insurance policies of any Company that have not been used to make any repurchases, redemptions or payments under this clause (e), net of any forgiveness of Indebtedness incurred by any such officer, director or employee or former officer, director or employee in connection with the acquisition of Qualified Capital Stock of Borrower, plus (iv) the Cumulative Amount; provided that the Cumulative Amount Utilization Requirements are satisfied as of the Deferral Preferred Sharesdate such Dividends are paid; provided, Series-[·] further, that during an Event of Default any payments described in this Section 6.08(e) may accrue and shall be entitled permitted to receive be paid upon waiver or extinction of such Event of Default so long as no other Event of Default is continuing at such time;
(f) Borrower or any Subsidiary of Borrower may (A) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (B) honor any conversion request by a holder of convertible Indebtedness permitted hereunder and make cash payments in lieu of fractional shares in connection with any such conversion;
(g) repurchases of Equity Interests deemed to occur upon the Corporation shall pay thereon, as and when declared by exercise of stock options if the board of directors out Equity Interests represent a portion of the monies exercise price thereof;
(h) Borrower may pay dividends and distributions within sixty (60) days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 6.08;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, Borrower may make Dividends (excluding Dividends on the DR Systems Preferred Stock or any Replacement Preferred Stock) in an aggregate amount over the term of this Agreement that do not exceed (i) $2,500,000 over the term of this Agreement plus (ii) the Cumulative Amount; provided that the Cumulative Amount Utilization Requirements are satisfied as of the Corporation properly applicable date such Dividends are paid;
(j) so long as (i) no Event of Default has occurred and is continuing, (ii) no DR Systems Preferred Stock Diligence Put has occurred, (iii) the Total Leverage Ratio calculated on a Pro Forma Basis before and after giving effect to such Dividends is not more than 5.00 to 1.00, and (iv) Liquidity shall be not less than $10,000,000 immediately after giving effect to such Dividend, the payment Borrower may make all (or such portion as is permitted to be paid in accordance with the foregoing calculations) of dividendsthe scheduled quarterly Dividends on the DR Systems Preferred Stock plus any accrued and unpaid quarterly Dividends on the DR Systems Preferred Stock that accumulated during any prior quarter; provided, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: that (x) the product obtained by multiplying $1,000 by a rate of such Dividends shall not exceed 8.50% per annum of an amount equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in liquidation value plus accrued and unpaid dividends for a partial Dividend Period becoming payable, (as determined in accordance with the dividend payable DR Systems Preferred Stock Documentation as in effect on the First Amendment Effective Date) and (y) if for any partial reason all or any portion of any such Dividend Periods shall cannot be equal paid as a result of application of this provision or otherwise, such unpaid amount may compound and accumulate unless and until paid in accordance herewith;
(k) Dividends made solely in Equity Interests of Borrower (other than Disqualified Capital Stock); provided, that no Default or Event of Default, has occurred and is continuing prior to, or will occur immediately after, such Dividend. ;
(l) Dividends in an amount not to exceed the payment legally required to acquire the remaining approximately 10% of the Equity Interests of DR Systems pursuant to a cash merger within 75 days after the initial acquisition of Equity Interests of DR Systems;
(m) non-cash, payment-in-kind Dividends paid in respect of the DR Systems Preferred Stock in accordance with the DR Systems Preferred Stock Documentation or, after consummation of the redemption of the DR Systems Preferred Stock in connection with a DR Systems Preferred Stock Diligence Put, any Replacement Preferred Stock issued in accordance with Section 6.08(n); and
(n) so long as no Event of Default has occurred and is continuing, solely in connection with consummation of a redemption arising from the exercise of the DR Systems Preferred Stock Diligence Put, cash Dividends to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral DR Systems Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess Stock from (i) Net Cash Proceeds of the cumulative preferential issuance of Qualified Capital Stock in accordance with Section 6.14 and/or (ii) the issuance of preferred Equity Interests of the Borrower in an amount equal to or less than the redemption price of the DR Systems Preferred Stock and otherwise upon substantially the same terms as the DR Systems Preferred Stock, except that no cash dividends hereinbefore provided. Payment Dividends shall be made by electronic funds transfer payable with respect thereto (“Replacement Preferred Stock”) so long as in each such case, such issuances of Qualified Capital Stock or by cheque of or on behalf Replacement Preferred Stock will occur substantially contemporaneously with the redemption of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsDR Systems Preferred Stock.
Appears in 1 contract
Dividends. The holders Declare or make, directly or indirectly, any Dividend, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may pay Dividends to the Borrower, any Subsidiaries of the Deferral Preferred SharesBorrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, Series-[·] shall be entitled ratably according to receive and the Corporation shall pay thereon, as and when declared by the board of directors out their respective holdings of the monies type of Equity Interest in respect of which such Dividend is being made, or, in the case of the Corporation properly applicable Borrower or any of its Subsidiaries which owns the Equity Interest in the Subsidiary paying such Dividends, at least its proportionate share thereof;
(b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(d) the Borrower may redeem, repurchase or otherwise acquire for value outstanding shares of Company Common Stock (or options, warrants or other rights to acquire such Company Common Stock) following the payment death, disability, retirement or termination of dividendsemployment of officers, on each Dividend Payment Datedirectors or employees of the Borrower or any of its Subsidiaries, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: provided that (x) the product obtained aggregate amount of all such redemptions and repurchases pursuant to this Section 7.06(d) shall not exceed $2,500,000 in any fiscal year of the Borrower (less the amount of any such redemption or repurchase effected by multiplying $1,000 by a rate per annum equal the forgiveness of Indebtedness owed to the rate of interest payable Borrower by the Trust on the Trust Notes as of the Issue Datesuch officer, by director or employee) and (y) four; at the time of any such redemption or repurchase permitted to be made pursuant to this Section 7.06(d), no Default or Event of Default shall then exist or result therefrom;
(e) the Borrower may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of such Qualified Preferred Stock (but not in cash), provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablelieu of issuing additional shares of such Qualified Preferred Stock as Dividends, the dividend payable for any partial Dividend Periods shall be equal Borrower may increase the liquidation preference of the shares of Qualified Preferred Stock in respect of which such Dividends have accrued;
(f) the Borrower may acquire shares of its Equity Interests in connection with the exercise of stock options or warrants to the product obtained extent such Equity Interests represent a portion of the exercise price of those stock options or warrants by multiplying way of cashless exercise;
(g) the amount Borrower may make Dividends consisting of the issuance of equity rights convertible into Qualified Preferred Stock in connection with certain “anti-takeover” and “poison pill” arrangements approved by the Board of Directors of the Borrower;
(xh) above the Borrower may make Dividends to directors, officers and employees of the Borrower and its Subsidiaries in connection with any incentive plans approved by a fractionthe Board of Directors of the Borrower consisting of (i) shares of Company Common Stock (or options, warrants and other equity instruments in respect thereof), (ii) cash incentive bonuses, and (iii) stock appreciation rights or performance units, including any cash payments in connection therewith;
(i) upon any conversion of any Permitted Convertible Notes at maturity into shares of Company Common Stock, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all Borrower may make Dividends consisting of the Deferral Preferred Sharesexercise of the applicable Call Spread Option relating to such Permitted Convertible Notes;
(j) so long as no Default or Event of Default then exists or would result therefrom, Series-[·] then issued and outstanding, such dividend or Dividends in an amount measured at the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions time of any applicable law and under such Dividend not to exceed Available Retained Excess Cash Flow at such time; and
(k) so long as no Default or Event of Default then exists or would result therefrom, Dividends in an aggregate amount during the provisions term of any trust indenture securing bondsthis Agreement not to exceed, debentures when taken together with the aggregate amount of prepayments, repayments, redemptions, repurchases or other securities acquisitions of the CorporationIndebtedness pursuant to Section 7.14(b), to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends$50,000,000.
Appears in 1 contract
Samples: Credit Agreement (Ciena Corp)
Dividends. The holders Parent shall not, and shall not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that:
(i) (I) any Wholly-Owned Subsidiary of the Deferral Preferred SharesParent may pay Dividends to the Parent or any Wholly-Owned Subsidiary of the Parent, Series-[·] (II) any Subsidiary Guarantor may pay Dividends to the Borrower or any Subsidiary Guarantor and (III) if the respective Subsidiary is not a Wholly-Owned Subsidiary of the Parent, such Subsidiary may pay Dividends to its shareholders generally so long as the Parent and/or its respective Subsidiaries which own Equity Interests in the Subsidiary paying such Dividends receive at least their proportionate share thereof (based upon their relative holdings of the Equity Interests in the Subsidiary paying such cash Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary);
(ii) so long as no Default or Event of Default (both before and after giving effect to the payment thereof) has occurred and is continuing, the Parent may repurchase its outstanding Equity Interests (or options to purchase such equity) theretofore held by its or any of its Subsidiaries’ employees, officers or directors following the death, disability, retirement or termination of employment of employees, officers or directors of the Parent or any of its Subsidiaries, provided that the aggregate amount expended to so repurchase equity of the Parent shall not exceed $2,000,000 in any fiscal year of the Parent; and
(iii) from and after the Trigger Date, the Parent may make, pay or declare Dividends; provided that for all Dividends made or paid pursuant to this clause (iii):
(A) if dividends, such Dividends in respect of a fiscal quarter shall only be entitled paid in any fiscal quarter, and if a share repurchase, such repurchase shall only be made in any fiscal quarter, in each case, after the date of delivery of quarterly or annual financial statements for such fiscal quarter, pursuant to receive Sections 9.01(a) and the Corporation shall pay thereon(b), as the case may be, and when declared by on or prior to 45 days after the board immediately succeeding fiscal quarter;
(B) no Default or Event of directors out Default has occurred and is continuing (or would arise after giving effect thereto) at the time of declaration of such Dividends;
(C) no Significant Default has occurred and is continuing (or would arise after giving effect thereto) at the time of payment of such Dividends;
(D) the aggregate amount of cash Dividends paid since the Trigger Date does not exceed 50% of the monies Parent’s Consolidated Net Income for the period (taken as one accounting period) commencing on July 1, 2013 and ending on the last day of the Corporation properly applicable last fiscal quarter for which financial statements have been provided to the Lenders pursuant to Section 9.01(a) or (b), plus the Available Equity Proceeds Amount, less the aggregate amount of Investments made pursuant to Section 10.05(xi) since the Trigger Date;
(E) the Total Leverage Ratio on a pro forma basis after giving effect to the payment of dividends, on each such Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal no greater than 0.60 to 1.00 for the product obtained by multiplying the amount in most recently ended Test Period for which financial statements are due under Section 9.01(a) or (xb); and
(F) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, prior to the payment of such Dividends, the same. The holders Parent shall deliver to the Administrative Agent an officer’s certificate signed by the Chief Financial Officer of the Deferral Parent, certifying that the requirements set forth in clauses (A) through and including (E) are satisfied. For avoidance of doubt, nothing herein shall prohibit the Parent from issuing or distributing to its shareholders rights to acquire common stock or Qualified Preferred SharesStock or redeeming any such rights, Series-[·] provided, however, the aggregate amount of cash used for any such redemption shall not be entitled to exceed $10,000,000 in any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendscalendar year.
Appears in 1 contract
Dividends. The Neither Guarantor nor Borrower shall pay any dividends or make any other distributions with respect to its Capital Stock (including all preferred units of Borrower) except that, so long as there is not a continuing Major Default under Sections 8.1 or 8.2, the Guarantor and the Borrower may make (i) distributions with respect to taxes related to the sale of assets as described in the definition of "Net Cash Proceeds" (including distributions required under the Operating Agreement in respect of taxes), (ii) distributions to the holders of partnership interests in Borrower that are entitled to any preference in distribution to the Deferral extent of any "Preferred Shares, Series-[·] Distribution Shortfall" (as defined in the Operating Agreement) and any preferred distribution for the then-current quarter as provided in clauses (1) and (2) of the first sentence of Section 5.1 of the Operating Agreement and (iii) whatever amount of dividends Guarantor is required to distribute to maintain its tax status as a real estate investment trust and to avoid the imposition of any corporate income or excise tax on Guarantor.
(iv) The following sentences shall be entitled added at the end of Section 7.12: Notwithstanding the foregoing or any other provision of this Agreement, the Lenders consent to receive and the Corporation shall pay thereon, as and when declared transaction (the "Newco Transaction") contemplated by the board Agreement and Plan of directors out Merger and Reorganization dated as of March 29, 2002 among the monies of Borrower, Guarantor or AGC and certain affiliates (as it may be amended as described below, the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: "Merger Agreement") including (xi) the product obtained by multiplying $1,000 by establishment of a rate per annum equal to the rate new holding company ("Newco") which upon consummation of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on transactions will hold all of the Deferral Preferred Sharescommon stock of AGC and the Guarantor, Series-[·] then issued and outstanding(ii) termination of the Guarantor's status as a REIT, subject to review and approval by the Required Lenders (which may be granted or denied in their discretion) of any (i) amendments to the Merger Agreement or (ii) changes to the Operating Agreement not expressly addressed in the Merger Agreement that, in either case, materially and adversely affect the position of the Lenders in relation to Borrower, Guarantor or any of their creditors. The Lenders will not be deemed to have approved any consolidation of, or cross-support between, the assets and debt of the Borrower and the assets and debt of AGC. A further approval from the Lenders will be required before any such dividend consolidation or cross-support. In addition, the unpaid part thereof Borrower agrees not to permit Newco to incur any Indebtedness or grant any Liens on its assets unless Newco simultaneously guarantees the Facility and if a Lien is granted to any other creditor, grants a pari passu Lien to the Lenders to secure the Facility and to the NGP Noteholders to secure the notes and other obligations of the Borrower under the Note Purchase Agreements.
(v) The following sentences shall be paid on added at the end of Section 7.13: Guarantor's Bylaws shall at all times provide, among other things, that (a) the majority of Guarantor's directors shall be Independent Directors, and (b) the Committee of Independent Directors (as defined in Guarantor's Bylaws) shall approve all transactions between Guarantor and David G. Price and his affiliates. As used herein, an "Indxxxxxxxx Xxxxxtor" shall have the meaning ascribed to such term in the Guarantor's Bylaws and shall further refer to a subsequent date director of Guarantor who was not at the time of initial appointment and is not at any time while serving as a director of Guarantor: (W) a director of AGC; (X) an officer or dates to be determined employee (with the exception of Charles S. Xxxx, xxxving as interim Chief Executive Officer of Guarantor), partner or attorney of Guarantor or AGC; (Y) a person controlling any such partner, or (Z) a member of the immediate family of any of the foregoing. It is acknowledged and agreed by the board of directors on which the Corporation shall have sufficient monies properly applicableparties hereto that Messrs. Charles S. Paul, under the provisions of any applicable law Bruce Karatz and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. John C. Cushman III are Xxxxxxxxxxx Xxxecxxxx xxx xxx purpxxxx xxxxxx.
(vi) The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment following additional clause shall be made by electronic funds transfer or by cheque added at the end of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends.Section 7.20:
Appears in 1 contract
Dividends. The holders Authorize, declare or pay, directly or indirectly, any Dividends with respect to any Group Member, except that the following shall be permitted (subject to the proviso in Section 6.03(o)): (
a) Dividends by any Group Member (x) to the Borrower or any Subsidiary Guarantor and (y) to any Subsidiary that is not a Guarantor; provided that any such Dividend under this clause (y) is either (I) paid only in Equity Interests of such Group Member (other than Disqualified Capital Stock) or (II) if paid in cash, is paid to all shareholders on a pro rata basis; (b) for any taxable period for which the Borrower or any Subsidiaries of the Deferral Preferred SharesBorrower are members of a consolidated, Series-[·] combined, unitary, or similar income tax group for federal and/or applicable state or local income tax purposes or are entities treated as disregarded from any such members for U.S. federal income Tax purposes (a “Tax Group”) of which the Borrower (or any direct or indirect parent company of the Borrower) is the common parent, the Borrower and the Borrower’s Subsidiaries may make Dividends, directly or indirectly, to the Borrower (and the Borrower may pay to any direct or indirect parent company of the Borrower) to permit the parent of such Tax Group to pay any consolidated, combined or similar income Taxes of such Tax Group that are due and payable by the parent of such Tax Group for such taxable period, but only to the extent attributable to the Borrower and/or Subsidiaries of the Borrower, provided that Dividends in respect of an Unrestricted Subsidiary shall be entitled to receive and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable permitted only to the payment extent that Dividends were made by such Unrestricted Subsidiary to such Group Member or any of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: its Subsidiaries for such purpose; provided further that (x) the product obtained by multiplying $1,000 by a rate per annum equal amount of Dividends permitted to be made under this Section 6.06(b) for any taxable period shall not exceed the rate lesser of interest (A) the amount of such Taxes that would have been due and payable by the Trust on Borrower and/or the Trust Notes as applicable Subsidiaries of the Issue DateBorrower had the Borrower and/or such Subsidiaries of the Borrower, by as applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate Tax Group) and (B) the actual Tax liability of the Tax Group for such taxable period, (y) four; provided to the extent that such Taxes are attributable to Subsidiaries of the Borrower that are not Credit Parties, such Taxes must be funded by such Subsidiaries and (z) if an event (including the Borrower receives a redemptionrefund from a Governmental Authority in respect of any amounts paid pursuant to this Section 6.06(b), any subsequent distributions pursuant to this Section 6.06(b) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained reduced by multiplying the amount of such refund; (c) repurchases or withholdings of Equity Interests in connection with the settlement or exercise of restricted stock units, options, warrants or similar rights if such Equity Interests represent a portion of the settlement or exercise of, or withholding obligations with respect to, such restricted stock units, options, warrants or similar rights, and satisfaction of any exercise price or tax obligations related thereto (xfor the avoidance of doubt, it being understood that any required withholding or similar tax related thereto may be paid by the Borrower or any Restricted Subsidiary in cash); (d) above by a fractionthe fees, payments and expenses made in connection with the numerator of which is the actual number of days attributable Transactions or used to the partial Dividend Period and the denominator of which is 365fund amounts owed to equityholders in connection therewith, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined extent permitted by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends Section 6.07 (other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States clause (less any tax required to be deducteda) and payment thereof shall satisfy such dividends.thereof); (e) [reserved];
Appears in 1 contract
Dividends. The Borrowers will not, nor will any of the Borrowers permit any of their respective Subsidiaries to, authorize, declare, pay or make any Dividends except:
(a) any Subsidiary of any of the Borrowers may distribute Dividends to holders of the Deferral Preferred Sharesits Equity Interests, Series-[·] shall be entitled to receive and the Corporation shall pay thereon, in each case so long as and when declared by the board of directors out any of the monies Borrowers or any Subsidiary of any of the Corporation properly applicable Borrowers which owns an Equity Interest in such Subsidiary receives a percentage of any such Dividends which is at least equal to its percentage Equity Interest in its respective Subsidiary distributing the Dividend (taking into account, however, the relative preferences, if any, of the various classes of Equity Interest of such Subsidiary); and
(b) (i) Trizec may from time to time pay Dividends to the payment owners of dividendsits Equity Interests (including, on each Dividend Payment Datewithout limitation, fixed cumulative preferential cash dividends equal to Dividends consisting of the quotient obtained by dividing: repurchase of any such Equity Interests) so long as (x) the product obtained aggregate amount of all such Dividends paid or made by multiplying $1,000 by a rate per annum equal to the rate Trizec in any fiscal year of interest payable by the Trust on the Trust Notes as Trizec does not exceed 90% of the Issue Date, by Funds From Operations of Trizec for such fiscal year and (y) fourthe aggregate amount of all such Dividends paid or made by Trizec for the first three fiscal quarters of Trizec in any fiscal year of Trizec, does not exceed 100% of Funds From Operations of Trizec for such three fiscal quarter period; provided provided, however, at any time that if a Specified Default or an event (including a redemptionEvent of Default then exists or would result therefrom, Dividends pursuant to this Section 9.03(b)(i) shall occur be limited to that results in accrued and unpaid dividends amount necessary for Trizec to maintain its status as a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all real estate investment trust under Sections 856 through 860 of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends.Code; and
Appears in 1 contract
Dividends. The holders Each Credit Party will not, and will not permit any of their respective Subsidiaries to, authorize, declare or pay any Dividends with respect to any Credit Party or any of their respective Subsidiaries, except that:
(a) (i) any Subsidiary of the Deferral Preferred SharesCompany may pay Dividends to the Company or to any Wholly Owned Subsidiary of the Company and (ii) any Credit Party may pay Dividends to any other Credit Party;
(b) any Non-Wholly Owned Subsidiary of the Company may pay Dividends to its shareholders, Series-[·] members or partners generally, so long as the Company or its respective Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interest 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);
(c) the Company may pay Dividends to any parent company (and such parent company may pay Dividends to its parent company), so long as the proceeds thereof are promptly used by such parent company (or its parent company) to pay legal, accounting and reporting expenses in the ordinary course of business, reasonable and customary general administrative costs and expenses and to pay reasonable and customary directors fees and expenses in the ordinary course of business and directly related to any such parent company’s ownership of the Credit Parties and their Subsidiaries and fees and expenses related to any equity or debt offering or acquisition;
(d) the Company may pay Dividends to any direct or indirect owner at the times and in the amounts necessary to enable such Person to pay its tax obligations; provided, that, the amount of Dividends paid pursuant to this clause (d) shall be entitled not exceed the amount of estimated or actual (as applicable) income that is allocable to receive and the Corporation shall pay thereon, as and when declared such Person multiplied by the board highest marginal federal, state and local tax rates applicable to an individual (or, if higher, a corporate) resident of New York, New York;
(e) the Company may pay Dividends, to any parent company (and such parent company may pay Dividends to its parent company) in an aggregate amount for all such Dividends (together with the aggregate amount of all Intercompany Loans made pursuant to Section 10.05(h) for such purpose) not to exceed the sum of (I) $2,500,000 in any Fiscal Year plus (II) the proceeds of key man life insurance policies received after the Effective Date to the extent utilized for the purposes described in this clause (e), in each case for the purpose of enabling such Person to redeem, repurchase or otherwise acquire for value, and such Person may redeem, repurchase or otherwise acquire for value (and any such parent company may pay a Dividend to its parent company for the purpose of enabling its parent company to redeem, repurchase or otherwise acquire for value), outstanding shares of capital stock of the Company or such parent company (or its parent company) (or options or warrants to purchase capital stock of the Company or such parent company (or its parent company)) following the death, disability or termination of employment of officers, directors or employees of any parent company or any of their respective Subsidiaries;
(f) each Credit Party may pay regularly scheduled Dividends on its Preferred Equity pursuant to the terms thereof solely through the issuance of additional shares of such Preferred Equity (but not in cash); provided, that, in lieu of issuing additional shares of such Preferred Equity as Dividends, such Credit Party may increase the liquidation preference of the shares of Preferred Equity in respect of which such Dividends have accrued;
(g) any Credit Party may pay Dividends in exchange for, or out of the monies cash proceeds of the Corporation properly applicable substantially concurrent sale for cash of, Equity Interests of any Credit Party or any direct or indirect parent of any Credit Party (other than Equity Interests sold to another Credit Party, the Company or a Subsidiary or an Unrestricted Subsidiary of the Company or to an employee stock ownership plan or any trust established by Company, any Credit Party or any Subsidiary or Unrestricted Subsidiary thereof);
(h) each Credit Party and their Subsidiaries may pay additional Dividends so long as the Payment Conditions are satisfied immediately after (and, in the case of clauses (i) and (ii) of the definition thereof, immediately before) giving effect to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: such Dividends;
(xi) the product obtained by multiplying Company and its Subsidiaries may pay Dividends in an aggregate amount not to exceed $1,000 by a rate per annum equal to 5,000,000 during the rate term of interest payable by this Agreement;
(j) each Credit Party and its Subsidiaries may pay Dividends within 60 days after the Trust on the Trust Notes as date of the Issue Date, by (y) four; provided that declaration thereof if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial at said date of declaration such Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall would have sufficient monies properly applicable, under complied with the provisions of this Section 10.03; and
(k) any applicable law Credit Party and under its Subsidiaries may repurchase its Equity Interests that may be deemed to occur (i) upon the provisions exercise of options or warrants if such Equity Interests represent all or a portion of the exercise price thereof and (ii) in connection with the withholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the taxes payable by such director or employee upon such grant or award shall be permitted so long as in any such case, no cash is paid by any Credit Party or Subsidiary thereof in respect of the repurchase of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsEquity Interests.
Appears in 1 contract
Dividends. The holders Holding will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holding or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower may pay cash Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Borrower or to any Wholly-Owned Subsidiary of the monies Borrower;
(ii) any non-Wholly-Owned Subsidiary of the Corporation properly applicable Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interest 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) 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 pay cash Dividends to Holding for the purpose of dividendsenabling Holding to repurchase, on each Dividend Payment Dateand Holding may repurchase, fixed cumulative preferential cash dividends equal outstanding shares of its common stock (or options to purchase such common stock) following the death, disability or termination of employment of officers, directors or employees of Holding or any of its Subsidiaries, PROVIDED that the aggregate amount of Dividends and repurchases made pursuant to this clause (iii) in any fiscal year of Holding shall not exceed the lesser of (A) $500,000 and (B) that amount permitted to be paid as a restricted payment at such time pursuant to the quotient obtained by dividing: first sentence of Section 4.08 of the Senior Subordinated Note Indenture;
(xiv) the product obtained Borrower may pay cash Dividends to Holding so long as the proceeds thereof are promptly used by multiplying Holding to pay operating expenses incurred in the ordinary course of business (including, without limitation, outside directors and professional fees, expenses and indemnities) and other similar corporate overhead costs and expenses, PROVIDED that the aggregate amount of cash Dividends paid pursuant to this clause (iv) shall not exceed $1,000 by a rate per annum equal 250,000 in any fiscal year of Holding;
(v) the Borrower may pay cash Dividends to Holding at the times and in the amounts necessary to enable Holding to pay its tax obligations;
(vi) Holding may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the rate terms thereof solely through the issuance of interest payable by additional shares of such Qualified Preferred Stock rather than in cash, provided that in lieu of issuing additional shares of Qualified Preferred Stock as Dividends, Holding may increase the Trust on the Trust Notes as liquidation preference of the Issue Date, by shares of the Qualified Preferred Stock in respect of which such Dividends have accrued; and
(yvii) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods Excluded Equity Transactions shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendspermitted.
Appears in 1 contract
Samples: Credit Agreement (Hydrochem Industrial Services Inc)
Dividends. The holders Borrower will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred SharesBorrower may pay Dividends to the Borrower or to any Wholly-Owned Subsidiary of the Borrower;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interest in the Subsidiary paying such Dividends and taking into account the relative preferences, Series-[·] shall be entitled if any, of the various classes of equity interests of such Subsidiary);
(iii) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may repurchase, for an amount not to receive and exceed $3,000,000, outstanding shares of its common stock (or options to purchase such common stock) held by a former employee of a Subsidiary of the Corporation shall Borrower, on the terms described in Schedule 10(a);
(iv) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay thereon, as and when declared cash Dividends in any fiscal year of the Borrower in an amount not to exceed the aggregate amount of cash actually received by the board Borrower during such fiscal year from the exercise of directors out options to purchase the common stock of the monies of Borrower; and
(v) the Corporation properly applicable Borrower may from time to the payment of dividendstime pay other cash Dividends on its common stock, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: so long as (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate no Default or Event of interest payable by the Trust on the Trust Notes as of the Issue Date, by Default then exists or would result therefrom and (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount of cash expended to make or pay Dividends pursuant to this clause (v) in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all fiscal year of the Deferral Preferred SharesBorrower shall not exceed (A) $20,000,000 during the fiscal year of the Borrower ending on December 31, Series-[·] then issued 2006 and outstanding, such dividend or (B) the unpaid part thereof shall be paid on a subsequent date or dates to be determined sum of (I) 25% multiplied by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities Net Cash Earnings of the Corporation, to Borrower and its Subsidiaries for the payment immediately preceding fiscal year of the same. The holders of the Deferral Preferred SharesBorrower and (II) $5,000,000, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsduring each fiscal year thereafter.
Appears in 1 contract
Samples: Credit Agreement (Usi Holdings Corp)
Dividends. The holders Borrower will not, and will not permit any of --------- its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred SharesBorrower may pay cash Dividends to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower and any Foreign Subsidiary of the Borrower also may pay cash Dividends to any Wholly-Owned Foreign Subsidiary of the Borrower;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interest in the Subsidiary paying such Dividends and taking into account the relative preferences, Series-[·] shall be entitled if any, of the various classes of equity interests of such Subsidiary);
(iii) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may repurchase outstanding shares of its common stock (or options to receive and purchase such common stock) held by former officers, directors or employees of the Corporation shall pay thereonBorrower or any of its Subsidiaries following the death, as and when declared disability, retirement or termination of employment of such officers, directors or employees, provided that the aggregate amount -------- of all Dividends paid by the board of directors out Borrower pursuant to this clause (iii) shall not exceed $500,000 in any fiscal year of the monies of Borrower;
(iv) the Corporation properly applicable Borrower may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the payment terms thereof solely through the issuance of dividendsadditional shares of such Qualified Preferred Stock rather than in cash;
(v) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay regularly scheduled cash Dividends on each Dividend Payment Date, fixed cumulative preferential cash dividends equal its common stock in an aggregate amount not to exceed the quotient obtained by dividing: lesser of (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as 8,500,000 in any fiscal year of the Issue Date, by Borrower and (y) fourthat amount permitted under the Senior Subordinated Note Indenture; provided that if and
(vi) the Borrower may effect open market repurchases of its common stock in an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, aggregate amount not to exceed the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in lesser of (x) above $20,000,000 and (y) that amount permitted under the Senior Subordinated Note Indenture, so long as (I) no Default or Event of Default then exists or would result therefrom, (II) calculations are made by the Borrower showing compliance with a fraction, Consolidated Total Leverage Ratio not to exceed 2.00:1.00 at the numerator time of which is the actual number of days attributable respective repurchase (and after giving effect thereto) and (III) the Borrower shall have delivered to the partial Dividend Period Administrative Agent and the denominator of which is 365each Lender a certificate executed by its chief financial officer or treasurer, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, certifying to the payment best of such officer's knowledge, compliance with the same. The holders requirements of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States preceding clauses (less any tax required to be deductedI) and payment thereof shall satisfy such dividends(II) and containing the calculations (in reasonable detail) required by preceding clause (II).
Appears in 1 contract
Samples: Credit Agreement (Manitowoc Co Inc)
Dividends. The holders Borrower will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Deferral Preferred SharesBorrower may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to the Borrower or to a Wholly-Owned Subsidiary of the Borrower 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, Series-[·] shall be entitled if any, of the various classes of Equity Interests of such Subsidiary); and
(iii) so long as no Default or Event of Default exists at the time of the respective Dividend, redemption or repurchase or would exist immediately after giving effect thereto, the Borrower may redeem or repurchase Equity Interests of the Borrower from officers, employees and directors of the Borrower or its Subsidiaries (or their estates) after the death, disability, retirement or termination of employment or service as a director 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 the Borrower provided that the aggregate amount of Dividends made by the Borrower pursuant to receive this clause (iii), and the Corporation aggregate amount paid shall pay thereon, as and when declared not (net of any proceeds received by the board Borrower from issuances of directors out of the monies of the Corporation properly applicable its Equity Interests and contributed to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: Borrower in connection with such redemption or repurchase) exceed either (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as during any fiscal year of the Issue DateBorrower, by $500,000 or (y) four; provided that if an event for all periods after the Initial Borrowing Date (including taken as a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payablesingle period), the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividends$2,500,000.
Appears in 1 contract
Dividends. The holders Borrower will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] shall be entitled directly or indirectly, authorize, declare or pay any Dividends with respect to receive the Borrower or any Restricted Subsidiary, except that:
(i) any Restricted Subsidiary may pay Dividends to the Borrower or to any Wholly-Owned Domestic Restricted Subsidiary and the Corporation shall pay thereon, as and when declared by the board of directors out any Subsidiary of the monies Borrower that is not a Credit Party may pay Dividends to any Wholly-Owned Restricted Subsidiary;
(ii) any Non-Wholly-Owned Restricted Subsidiary may pay Dividends to its shareholders, members or partners generally so long as the Borrower or a Restricted Subsidiary which owns the Equity Interests in the Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Corporation properly applicable Equity Interests in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);
(iii) the Borrower may redeem, repurchase or otherwise acquire for value, outstanding shares of its Qualified Equity Interests (or options or warrants to purchase its Qualified Equity Interests) following the death, disability or termination of employment of officers, directors or employees of the Borrower or any Restricted Subsidiary, provided that (x) the aggregate amount of all Dividends paid or made pursuant to this clause (iii) shall not exceed $5,000,000 in any fiscal year of the Borrower and (y) at the time of any Dividend permitted to be made pursuant to this clause (iii), no Default or Event of Default shall then exist or would result therefrom;
(iv) the Borrower may pay Dividends on its Qualified Equity Interests solely through the issuance of additional shares of Qualified Equity Interests of the Borrower (but not in cash), provided that in lieu of issuing additional shares of Qualified Equity Interests as Dividends, the Borrower may increase the liquidation preference of the shares of Qualified Equity Interests in respect of which such Dividends have accrued;
(v) the Borrower may pay cash Dividends so long as (A) the aggregate amount of Dividends paid pursuant to this clause (v), plus the aggregate amount of payments made pursuant to clause (x) of Section 6.15, does not exceed $15,000,000 in any fiscal year of the Borrower; provided that any unused portion of this basket may be utilized in any succeeding fiscal year of the Borrower and (B) no Default or Event of Default then exists or would result therefrom; and
(vi) the Borrower may pay additional cash Dividends pursuant to this clause (vi) in an aggregate amount not to exceed the Available Amount at such time (as determined immediately before giving effect to the making of such Dividend) so long as (A) no Default or Event of Default then exists or would result therefrom, (B) the Total Leverage Ratio at the time of such Dividend, determined on a Pro Forma Basis, is no greater than 2.50 to 1.00 and (C) prior to the payment of dividendssuch Dividend, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal the Borrower shall have delivered to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by Administrative Agent a rate per annum equal to the rate certificate of interest payable by the Trust on the Trust Notes as an Authorized Officer of the Issue Date, by Borrower certifying compliance with preceding sub-clauses (yA) four; provided that if an event and (including a redemptionB) shall occur that results and containing the calculations (in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (xreasonable detail) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsestablish compliance with preceding sub-clause (B).
Appears in 1 contract
Samples: Credit Agreement (Walter Investment Management Corp)
Dividends. The holders Borrower shall not, and shall not permit any of its Subsidiaries to, declare or pay any dividends, 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, any shares of any class of its Capital Stock now or hereafter outstanding (or any options, rights or warrants issued with respect to its Capital Stock), or set aside any funds for any of the Deferral Preferred Sharesforegoing purposes (all the foregoing "DIVIDENDS"), Series-[·] except that:
(a) Dividends may be made to the Borrower or any of its wholly-owned Subsidiaries by any of its wholly-owned Subsidiaries; and
(b) So long as no Default or Event of Default shall have occurred and be entitled to receive continuing or would result therefrom, the Borrower may declare and the Corporation shall pay thereon, as deliver dividends and when declared by the board of directors out distributions payable only in common stock of the monies Borrower; and
(c) So long as no Default or Event of Default shall have occurred and be continuing, any Subsidiary of the Corporation properly applicable Borrower that is not a wholly-owned Subsidiary of the Borrower may declare and pay cash dividends to the payment of dividendsextent, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal and only to the quotient obtained by dividing: extent, of any cumulative positive net income (xafter deducting any negative net income) of such Subsidiary arising after the product obtained by multiplying $1,000 by date such Subsidiary became a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as Subsidiary of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid Borrower so long as such dividends for a partial Dividend Period becoming payable, the dividend are payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid its equity holders on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsratable basis.
Appears in 1 contract
Dividends. The holders Borrower shall not, and shall not permit any of its Subsidiaries to, authorize, declare or pay any dividends (other than dividends payable solely in common stock of the Deferral Preferred SharesBorrower or any such Subsidiary, Series-[·] shall be entitled 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 receive 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 Corporation shall pay thereonBorrower 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 Subsidiary, as and when declared the case may be, now or hereafter outstanding (or any options or warrants or stock appreciate rights issued by the board of directors out such Person with respect to its capital stock) (all of the monies foregoing and including all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of any funds for the foregoing purposes, "Dividends"), except that:
(i) any Subsidiary of the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: Borrower (x) the product obtained by multiplying $1,000 by a rate per annum equal may pay cash Dividends to the rate of interest payable by the Trust on the Trust Notes as Borrower or any Wholly-Owned Subsidiary of the Issue Date, by Borrower and (y) fourif such Subsidiary is not a Wholly-Owned Subsidiary, may pay cash Dividends to its shareholders 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 the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary);
(ii) Borrower Preferred Stock may be issued as a dividend on the Borrower Preferred Stock;
(iii) so long as no Default or Event of Default shall have occurred or shall result therefrom, the Borrower will be permitted to redeem or repurchase, shares of its common stock or options in respect thereof, in each case, in connection with the repurchase provisions under employee stock option or stock purchase agreements or other agreements to compensate management employees; provided PROVIDED that if an event such redemptions or repurchases pursuant to this clause (including a redemptioniii) shall occur that results not exceed $5,000,000 in accrued and unpaid dividends for a partial Dividend Period becoming payablethe aggregate after the Initial Borrowing Date; and
(iv) so long as no Default or Event of Default shall have occurred or shall result therefrom, the dividend payable Borrower will be permitted to make payments in respect of any redemption, repurchase, acquisition, cancellation or other retirement for any partial Dividend Periods shall be equal to value of shares of capital stock of the product obtained by multiplying the amount in (x) above by a fractionBorrower or options, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365stock appreciation or similar securities, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all held by then current or former officers, directors or employees of the Deferral Preferred SharesBorrower or any of its Subsidiaries (or their estates or beneficiaries under their estates) or by an employee benefit plan, Series-[·] then issued upon the death, disability, retirement or termination of employment of such officers, directors and outstandingemployees, such dividend or not to exceed $2,500,000 in the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of aggregate in any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities fiscal year of the Corporation, Borrower and not to exceed $10,000,000 in the payment of aggregate after the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsInitial Borrowing Date.
Appears in 1 contract
Dividends. The holders Holdings will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except that:
(a) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower may pay Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Borrower or to any Subsidiary of the monies Borrower that owns Equity Interests therein;
(b) any Non-Wholly-Owned Subsidiary of the Corporation properly applicable Borrower may pay Dividends to its shareholders, members or partners generally, so long as the payment Borrower or its respective Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of dividendsthe Equity Interest in the Subsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential of the various classes of Equity Interests of such Subsidiary);
(c) the Borrower may pay cash dividends equal Dividends to Holdings, and Holdings may pay cash Dividends to any parent entity of Holdings, for the quotient obtained by dividing: purpose of enabling Holdings (or any parent entity of Holdings) to redeem, repurchase or otherwise acquire for value outstanding Equity Interests of Holdings (or such parent entity) originally issued to (or for the benefit of), and following the death, disability, resignation or termination of employment of, officers, directors or employees of Holdings or any of its Subsidiaries (so long as Holdings (or any parent holding company) promptly uses the proceeds therefrom for such purposes); provided, that (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate aggregate amount of interest payable Dividends paid by the Trust Borrower in reliance on the Trust Notes as this clause (c) shall not exceed $2,300,000 in any Fiscal Year of the Issue DateBorrower, by and (y) four; provided at the time of any Dividend, purchase or payment permitted to be made pursuant to this clause (c), no Event of Default shall have occurred and be continuing or would result therefrom;
(d) the Borrower may pay cash Dividends to Holdings and Holdings may pay cash Dividends to any parent entity of Holdings that if serves as the common parent of an event (including a redemption) shall occur affiliated, consolidated or unitary group that results includes the Borrower at the times and in accrued and unpaid dividends for a partial Dividend Period becoming payablethe amounts necessary to enable Holdings or such parent holding company to pay its tax obligations, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying extent attributable solely to the amount in business of the Borrower and its Subsidiaries; provided, that (x) the amount of cash Dividends paid by the Borrower pursuant to this clause (d) to enable Holdings to pay Federal and state income and franchise taxes at any time shall not exceed the amount of such Federal and state income and franchise taxes actually owing by Holdings at such time for the respective period as determined in good faith by Holdings and (y) the proceeds of such Dividends shall be used promptly by Holdings and/or any parent holding company for the purposes described above in this clause (d);
(e) the Borrower may pay cash Dividends to Holdings and Holdings may pay cash Dividends to any parent entity of Holdings, so long as the proceeds thereof are promptly used by a fractionHoldings or such parent entity to pay operating expenses of Holdings or such parent entity incurred in the ordinary course of business (including, the numerator of which is the actual number of days attributable to the partial Dividend Period without limitation, outside directors and the denominator of which is 365professional fees, subject expenses and indemnities) and other similar corporate overhead costs and expenses, and in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporationcase, to the payment extent attributable solely to the business of the same. The Borrower and its Subsidiaries; provided, that the aggregate amount of all Dividends paid by the Borrower or Holdings pursuant to this clause (e) to one or more parent entities of Holdings shall not exceed $2,300,000 in any Fiscal Year of the Borrower;
(f) Holdings may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of Qualified Preferred Stock (but not in cash); provided, that in lieu of issuing additional shares of such Qualified Preferred Stock as Dividends, Holdings may increase the liquidation preference of the shares of Qualified Preferred Stock in respect of which such Dividends have accrued;
(g) the Borrower may, in lieu of making direct cash payments to Sponsor and its Affiliates as otherwise permitted by Section 9.06(g) pay cash Dividends to Holdings, and Holdings may pay such cash Dividends to any parent holding company thereof, to enable Holdings or such parent holding company to make such payments, so long as Holdings or such parent holding company promptly uses the proceeds of such Dividends to make the payments permitted by such Sections; provided, that all payments pursuant to this clause (g) shall be treated as having been made pursuant to the relevant clauses of Section 9.06 for purposes of determining compliance therewith;
(h) [reserved];
(i) Dividends deemed to occur upon the cashless exercise of stock options and warrants or similar equity incentive awards of Holdings shall be permitted;
(j) the Borrower may pay dividends to Holdings and Holdings may pay Dividends to its equity holders or the equity holders of any parent holding company to make payments in cash in lieu of the Deferral Preferred Sharesissuance of fractional shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such Person; provided, Series-[·] that the aggregate amount of all dividends paid by Holdings pursuant to this clause (j) shall not be entitled exceed $3,450,000; and
(k) Holdings and its Subsidiaries may pay other Dividends in an aggregate amount, together with all other Dividends made pursuant to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required this Section 9.03(k), not to be deducted) and payment thereof shall satisfy such dividendsexceed $287,500.
Appears in 1 contract
Samples: Subordinated Term Loan Credit Agreement (J.Jill, Inc.)
Dividends. The holders Holdings will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except that:
(a) any Subsidiary of the Deferral Preferred Shares, Series-[·] shall be entitled Borrower may pay Dividends to receive and the Corporation shall pay thereon, as and when declared by the board of directors out Borrower or to any Subsidiary of the monies Borrower that owns Equity Interests therein;
(b) any Non-Wholly-Owned Subsidiary of the Corporation properly applicable Borrower may pay Dividends to its shareholders, members or partners generally, so long as the payment Borrower or its respective Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of dividendsthe Equity Interest in the Subsidiary paying such Dividends and taking into account the relative preferences, on each Dividend Payment Dateif any, fixed cumulative preferential of the various classes of Equity Interests of such Subsidiary);
(c) the Borrower may pay cash dividends equal Dividends to Holdings, and Holdings may pay cash Dividends to any parent entity of Holdings, for the quotient obtained by dividing: purpose of enabling Holdings (or any parent entity of Holdings) to redeem, repurchase or otherwise acquire for value outstanding Equity Interests of Holdings (or such parent entity) originally issued to (or for the benefit of), and following the death, disability, resignation or termination of employment of, officers, directors or employees of Holdings or any of its Subsidiaries (so long as Holdings (or any parent holding company) promptly uses the proceeds therefrom for such purposes); provided, that (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate aggregate amount of interest payable Dividends paid by the Trust Borrower in reliance on the Trust Notes as this clause (c) shall not exceed $2,000,000 in any Fiscal Year of the Issue DateBorrower, by and (y) four; provided at the time of any Dividend, purchase or payment permitted to be made pursuant to this clause (c), no Event of Default shall have occurred and be continuing or would result therefrom;
(d) the Borrower may pay cash Dividends to Holdings and Holdings may pay cash Dividends to any parent entity of Holdings that if serves as the common parent of an event (including a redemption) shall occur affiliated, consolidated or unitary group that results includes the Borrower at the times and in accrued and unpaid dividends for a partial Dividend Period becoming payablethe amounts necessary to enable Holdings or such parent holding company to pay its tax obligations, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying extent attributable solely to the amount in business of the Borrower and its Subsidiaries; provided, that (x) the amount of cash Dividends paid by the Borrower pursuant to this clause (d) to enable Holdings to pay Federal and state income and franchise taxes at any time shall not exceed the amount of such Federal and state income and franchise taxes actually owing by Holdings at such time for the respective period as determined in good faith by Holdings and (y) the proceeds of such Dividends shall be used promptly by Holdings and/or any parent holding company for the purposes described above in this clause (d);
(e) the Borrower may pay cash Dividends to Holdings and Holdings may pay cash Dividends to any parent entity of Holdings, so long as the proceeds thereof are promptly used by a fractionHoldings or such parent entity to pay operating expenses of Holdings or such parent entity incurred in the ordinary course of business (including, the numerator of which is the actual number of days attributable to the partial Dividend Period without limitation, outside directors and the denominator of which is 365professional fees, subject expenses and indemnities) and other similar corporate overhead costs and expenses, and in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporationcase, to the payment extent attributable solely to the business of the same. The Borrower and its Subsidiaries; provided, that the aggregate amount of all Dividends paid by the Borrower or Holdings pursuant to this clause (e) to one or more parent entities of Holdings shall not exceed $2,000,000 in any Fiscal Year of the Borrower;
(f) Holdings may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of Qualified Preferred Stock (but not in cash); provided, that in lieu of issuing additional shares of such Qualified Preferred Stock as Dividends, Holdings may increase the liquidation preference of the shares of Qualified Preferred Stock in respect of which such Dividends have accrued;
(g) the Borrower may, in lieu of making direct cash payments to Sponsor and its Affiliates as otherwise permitted by Section 9.06(g) pay cash Dividends to Holdings, and Holdings may pay such cash Dividends to any parent holding company thereof, to enable Holdings or such parent holding company to make such payments, so long as Holdings or such parent holding company promptly uses the proceeds of such Dividends to make the payments permitted by such Sections; provided, that all payments pursuant to this clause (g) shall be treated as having been made pursuant to the relevant clauses of Section 9.06 for purposes of determining compliance therewith;
(h) [reserved];
(i) Dividends deemed to occur upon the cashless exercise of stock options and warrants or similar equity incentive awards of Holdings shall be permitted;
(j) the Borrower may pay dividends to Holdings and Holdings may pay Dividends to its equity holders or the equity holders of any parent holding company to make payments in cash in lieu of the Deferral Preferred Sharesissuance of fractional shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such Person; provided, Series-[·] that the aggregate amount of all dividends paid by Holdings pursuant to this clause (j) shall not be entitled exceed $3,000,000; and
(k) Holdings and its Subsidiaries may pay other Dividends in an aggregate amount, together with all other Dividends made pursuant to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required this Section 9.03(k), not to be deducted) and payment thereof shall satisfy such dividendsexceed $250,000.
Appears in 1 contract
Dividends. The holders Neither Magellan nor the Borrower will, nor will they permit any of their respective Subsidiaries to, authorize, declare or pay any Dividends with respect to Magellan or any of its Subsidiaries, except that:
(i) any Subsidiary of Magellan may (x) pay Dividends to Magellan or to any Wholly-Owned Subsidiary of Magellan and (y) if such Subsidiary is not a Wholly-Owned Subsidiary of Magellan, pay Dividends to its shareholders, partners or members generally so long as Magellan 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 the Subsidiary paying such Dividends and taking into account that the relative preferences, if any, of the Deferral Preferred Shares, Series-[·] various classes of equity interests in such Subsidiary);
(ii) so long as there shall be entitled to receive exist no Default or Event of Default (both before and the Corporation shall pay thereon, as and when declared by the board of directors out of the monies of the Corporation properly applicable after giving effect to the payment thereof), Magellan may repurchase outstanding shares of dividendsits capital stock (or options to purchase such capital stock) following the death, on each Dividend Payment Datedisability, fixed cumulative preferential cash dividends equal retirement or termination of employment of employees, officers or directors of Magellan or any of its Subsidiaries; provided, that the aggregate amount of all Dividends paid by Magellan pursuant to this clause (ii) shall not exceed $5,000,000 in any fiscal year of Magellan;
(iii) Magellan may pay or make Dividends (including to repurchase shares of its capital stock) so long as (a) no Default or Event of Default then exists or would result therefrom, (b) calculations are made by Magellan with respect to the quotient obtained by dividing: financial covenants contained in Sections 9.08 and 9.09 for the respective Calculation Period on Pro Forma Basis as if the respective Dividend (as well as all other Dividends theretofore paid or made after the first day of such Calculation Period) had occurred on the first day of such Calculation Period, and such calculations shall show (x) in the product obtained by multiplying $1,000 by a rate per annum equal to the rate case of interest payable by the Trust on the Trust Notes Section 9.08, that such financial covenant would have been complied with as of the Issue Date, by last day of such Calculation Period and (y) four; provided in the case of Section 9.09 , that if an event the Total Leverage Ratio would have been no greater than 2.00:1.00 as of the last day of such Calculation Period, (c) immediately after giving effect to such proposed Dividend, the sum of the Total Unutilized Revolving Loan Commitment plus the aggregate amount of all Unrestricted cash and Cash Equivalents of Magellan and its Subsidiaries at such time shall equal or exceed $50,000,000 and (d) in connection with the payment or making of cash Dividends to holders of its capital stock (but not including, for the purposes of this sub-clause (d) only, the repurchase of shares of Magellan’s capital stock), Magellan shall have delivered to the Administrative Agent (with copies for each Lender) a certificate executed by one of its Authorized Officers certifying compliance with the requirements of preceding clauses (a) through (c), inclusive, and containing the calculations (in reasonable detail) required by preceding clauses (c) and (d);
(iv) so long as no Default or Event of Default then exists or would result therefrom, Magellan may pay or make additional Dividends (including a redemptionto repurchase shares of its capital stock) shall occur that results in accrued an aggregate amount not to exceed $10,000,000 in any fiscal year of Magellan;
(i) Magellan may redeem in whole or in part any of its capital stock for another class of its capital stock (other than Disqualified Stock) or rights to acquire its capital stock (other than Disqualified Stock) and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount (ii) Magellan may declare and make Dividends solely in its capital stock (xother than Disqualified Stock);
(vi) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on Magellan may pay any Dividend Payment Date within 30 days after the dividend payable on date of declaration thereof, if at the date of declaration such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall payment would have sufficient monies properly applicable, under complied with the provisions of this Agreement; and
(vii) Magellan may (a) pay cash in lieu of fractional shares in connection with any applicable law Dividend, split or combination thereof and under the provisions (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsconversion.
Appears in 1 contract
Dividends. The holders Furniture Brands shall not, and shall not permit any of its Restricted Subsidiaries to, authorize, declare or pay any Dividends with respect to Furniture Brands or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of any Borrower may pay Dividends to such Borrower or any Wholly-Owned Subsidiary which is a Restricted Subsidiary of the Deferral Preferred SharesBorrowers;
(ii) so long as no Default or Event of Default exists or would result therefrom, Series-[·] Furniture Brands shall be entitled permitted to receive pay Dividends (including, without limitation, Dividends on Qualified Preferred Stock and the Corporation shall pay thereon, as and when declared by the board payments made to repurchase or redeem Furniture Brands Warrants or outstanding capital stock of directors out of the monies of the Corporation properly applicable Furniture Brands) in an amount not to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: exceed (xA) the product obtained by multiplying Available $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial 25 Million Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable Basket Amount on such date is not paid (after giving effect to all prior and contemporaneous reductions thereto, except as a result of such Dividend), plus (B) the Available Net Income Amount on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Dividend) plus (C) the then Available Unrestricted Proceeds Amount (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Dividend), minus (D) all Guaranty Payments made by Furniture Brands pursuant to Section 9.10(b)(ii)(y)(A) and (B); and
(iii) so long as no Default or Event of Default exists or would result therefrom, Furniture Brands may pay regularly accruing cash Dividends on Disqualified Preferred Stock in full on all accordance with the terms of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board certificate of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsdesignation therefor.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Dividends. The holders Parent will not, and will not permit any of the Deferral Preferred SharesRestricted Subsidiaries to, Series-[·] authorize, declare or pay any Dividends with respect to Parent or any of the Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of the Parent may pay Dividends or return capital or make distributions and other similar payments with regard to its Equity Interests to Parent or to other Restricted Subsidiaries of Parent which directly or indirectly own equity therein;
(ii) any non-Wholly-Owned Subsidiary of the Parent may declare and pay cash Dividends to its shareholders generally so long as the Parent or its Restricted 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) so long as no Default or Event of Default exists at the time of the applicable Dividend, redemption or repurchase or would exist immediately after giving effect thereto, Parent may pay cash dividends or make cash distributions to any other Parent Company to redeem or repurchase, contemporaneously with such Dividend, Equity Interests of Parent or such other Parent Company from management, employees, officers and directors (and their successors and assigns) of the Parent and its Restricted Subsidiaries; provided that (A) the aggregate amount of Dividends paid by Parent or such other Parent Company in respect of all such Equity Interests so redeemed or repurchased shall not, in either case, exceed during any fiscal year of Parent $4,000,000 (provided that the amount of cash Dividends permitted to be, but not, paid in any fiscal year pursuant to this clause (iii) shall increase the amount of cash Dividends permitted to be paid in the next succeeding fiscal year pursuant to this clause (iii)); and (B) such amount in any fiscal year may be increased by an amount not to exceed: (I) the cash proceeds of key man life insurance policies received by Parent or any Restricted Subsidiary after the Closing Date; plus (II) the net proceeds from the sale of Equity Interests of Parent, in each case to members of management, managers, directors or consultants of any Parent Company or any of its Subsidiaries that occurs after the Closing Date, where the net proceeds of such sale are received by or contributed to Parent; provided that the amount of any such net proceeds that are utilized for any Dividend under this clause (iii) will not be considered to be net proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”; less (III) the amount of any Dividends previously made with the cash proceeds described in the preceding clause (I);
(iv) the Parent may pay cash dividends or other distributions, or make loans or advances to any Parent Company or the equity interest holders thereof in amounts required for any Parent Company or the equity interest holders thereof to pay, in each case without duplication, the purchase or other acquisition by Parent or any other Parent Company of the Parent of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all of the Equity Interests in a Person; provided that if such purchase or other acquisition had been made by Parent, it would have constituted a Permitted Acquisition permitted to be made pursuant to Section 9.14; provided that (A) such dividend, distribution, loan or advance shall be entitled made concurrently with the closing of such purchase or other acquisition and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) and any liabilities assumed to receive and be contributed to Parent or any Restricted Subsidiary or (2) the Corporation shall pay thereon, as and when declared by merger (to the board of directors out extent permitted in Section 10.02) into Parent or any Restricted Subsidiary of the monies Person formed or acquired in order to consummate such purchase or other acquisition;
(v) reasonable and customary indemnities to directors, officers and employees of Parent or any other Parent Company in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Parent and its Restricted Subsidiaries;
(vi) KEC may pay cash Dividends to Parent so long as the proceeds thereof are promptly used by Parent (or subsequently paid (including as a Dividend by Parent) to any other Parent Company) for payment of obligations under or in respect of director and officer insurance policies to the extent reasonably attributable to the ownership or operation of Parent and its Restricted Subsidiaries;
(vii) any Dividend used to fund the Transactions, including Transactions Costs;
(viii) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or similar equity incentive awards, or upon the vesting of shares of restricted stock or restricted stock units;
(ix) any Dividends to the extent the same are made solely with the Available Amount, so long as at the time of, and immediately after giving effect to such Dividend, (i) no Event of Default shall have occurred and be continuing and (ii) the Consolidated Total Net Leverage Ratio, on a Pro Forma Basis as of the Corporation properly applicable last day of the most recently ended Test Period for which Section 9.01 Financials were required to the payment of dividendshave been delivered, on each Dividend Payment Date, fixed cumulative preferential cash dividends equal does not exceed 1.50 to the quotient obtained by dividing: 1.00;
(x) the product obtained declaration and payment of Dividends or the payment of other distributions by multiplying the Parent in an aggregate amount since the Closing Date, when added to the aggregate amount of Investments made pursuant to Section 10.05(xix) and the aggregate amount expended in reliance on Section 10.07(a)(C)(iii), not to exceed $1,000 25,000,000;
(xi) Parent and its Restricted Subsidiaries may declare and make a Dividend payment or other distributions payable solely in the Equity Interests of such Person so long as in the case of Dividend or other distribution by a rate per annum equal Restricted Subsidiary, Parent or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution;
(xii) Parent may pay Dividends with the cash proceeds contributed to its common equity from the rate net cash proceeds of interest payable any equity issuance by the Trust on the Trust Notes as any Parent Company, so long as, with respect to any such payments, no Event of the Issue Date, by (y) fourDefault shall have occurred and be continuing or would result therefrom; provided that if an event (including a redemption) shall occur the amount of any such cash proceeds that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable are utilized for any partial Dividend Periods shall under this clause (xii) will not be equal considered to be cash proceeds of Equity Interests for purposes of clause (a)(ii) of the definition of “Available Amount”;
(xiii) Parent and its Restricted Subsidiaries may pay Dividends within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with another provision of this Section 10.03;
(xiv) So long as Parent is a public company with common equity listed on any public securities exchange, Parent and its Restricted Subsidiaries may pay Dividends on Parent’s common equity in an amount not to exceed $7,500,000 per fiscal year; and
(xv) Dividends to Parent or any Restricted Subsidiary solely to the product obtained by multiplying extent made in connection with the amount TOKIN Loan Documents. In determining compliance with this Section 10.03 (and in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not determining amounts paid in full on all as Dividends pursuant hereto for purposes of the Deferral Preferred Sharesdefinition of Consolidated EBITDA and Consolidated Net Income), Series-[·] then issued and outstanding, such dividend amounts loaned or the unpaid part thereof shall be paid on a subsequent date or dates advanced to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the CorporationParent pursuant to Section 10.05(vi) shall, to the payment of the same. The holders of the Deferral Preferred Sharesextent such loan or advance remains unpaid, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required deemed to be deducted) and payment thereof shall satisfy such dividendscash Dividends paid to Parent to the extent provided in said Section 10.05(vi).
Appears in 1 contract
Dividends. The holders Company will not, and will not permit any of its Subsidiaries to declare or pay or set aside for payment (whether in cash, property or obligations of the Deferral Preferred SharesCompany or any of its Subsidiaries) any dividends on, Series-[·] shall be entitled to receive and the Corporation shall pay thereonor other distributions in respect of, as and when declared by the board of directors out of the monies of the Corporation properly applicable to the or any other payment of dividendsany kind with respect to, on each Dividend Payment Dateor purchase, fixed cumulative preferential cash dividends equal to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Dateredeem or otherwise acquire, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures capital stock or other securities of the Corporation, Company or any of its Subsidiaries except that (a) Subsidiaries of the Company may make such payments to the payment Company or a wholly-owned Subsidiary of the same. The Company, (b) the Company may purchase, redeem, or acquire its capital stock from employees and board members and their estates or members of their immediate families upon the resignation, termination or death of such employee or board member, provided that the aggregate amount of all such purchases over the term of this Agreement does not exceed $2,000,000 and that at the time of such transaction there shall exist no Default, (c) Joint Ventures may pay dividends on their equity securities so long as such dividends are paid on a pro rata basis to their respective equity holders and (d) the Company may repurchase shares of its Common Stock for an amount not to exceed 10% of the Deferral Preferred Sharesconsolidated net income of the Company and its Subsidiaries less extraordinary non-cash losses associated with the write-off of goodwill to the extent that such losses were not already included in determining consolidated net income, Series-[·] that, on a cumulative basis, has accrued since the beginning of the 1999 fiscal year so long as at the time of such transaction, there shall not be entitled exist no Default; provided, however, notwithstanding the foregoing, in no event may the Company or any of its Subsidiaries purchase, redeem or acquire (or make any announcement with respect to any dividends of the foregoing) any shares of its capital stock during the 120-day period ending on any of the second, third or fourth anniversary of the Closing Date (other than stock transferred to the Company as consideration (i) upon the termination of a service agreement between a Practice and the Company or in excess of (ii) for a Practice's contractual indemnification obligations to the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsCompany).
Appears in 1 contract
Samples: Securities Purchase Agreement (American Physician Partners Inc)
Dividends. The holders (a) So long as no Event of Default shall have occurred and be continuing, the Deferral Preferred Shares, Series-[·] Pledgor shall be entitled to receive and retain or otherwise deal with any and all dividends paid in respect of the Corporation Pledged Collateral, provided, however, that any and all:
(i) dividends paid or payable other than in cash in connection with, and instruments and other property received, receivable or otherwise distributed in connection with, or in exchange for, any Pledged Collateral,
(ii) dividends and other distributions paid or payable in cash in respect of any Pledged Collateral in connection with a partial or total liquidation or dissolution of such Pledged Collateral or in connection with a reduction of capital of the issuer, and
(iii) cash paid, payable or otherwise distributed in redemption of, or in exchange for, any Pledged Collateral, shall pay thereonbe forthwith delivered to the Agent to hold as Pledged Collateral for the benefit of the Banks and shall, as and when declared if received by the board of directors out Pledgor, be received in trust for the benefit of the monies Banks and be segregated from the other property or funds of the Corporation properly applicable Pledgor, and be forthwith delivered to the Agent as Pledged Collateral in the same form as so received (with any necessary endorsement). Cash which is held by the Agent and which the Agent is entitled to retain hereunder shall be applied under the Revolving Credit Agreement to the prepayment or payment of dividendsthe outstanding Obligations.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) all rights of the Pledgor to receive the dividends and other payments which it would otherwise be authorized to receive and retain pursuant to this Section 5 shall cease, on each Dividend Payment Date, fixed cumulative preferential cash and all such rights shall thereupon become vested in the Agent which shall thereupon have the sole right to apply such dividends equal and other payments pursuant to the quotient obtained by dividing: (x) the product obtained by multiplying $1,000 by a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by (y) four; provided that if an event (including a redemption) shall occur that results in accrued and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in (x) above by a fraction, the numerator of which is the actual number of days attributable to the partial Dividend Period and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions of any applicable law and under the provisions of any trust indenture securing bonds, debentures or other securities of the Corporation, Revolving Credit Agreement to the payment of the same. The holders outstanding Obligations; and
(ii) all dividends and other payments which are received by the Pledgor contrary to the provisions of paragraph (i) of this Section 5(b) shall be received by the Pledgor in trust for the Banks, shall be segregated from other funds of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment Pledgor and shall be made by electronic funds transfer or by cheque forthwith paid over to the Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).
(c) Nothing in this Section 5 shall be construed to alter the limitations on the permissibility of or on behalf of Distributions as set forth in the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsRevolving Credit Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Halter Marine Group Inc)
Dividends. The holders Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or pay any Dividends with respect to the Borrower or any of its Restricted Subsidiaries, except that:
(i) any Restricted Subsidiary of the Deferral Preferred SharesBorrower may pay Dividends to its equity holders on a pro rata basis; provided that, Series-in the case of any Dividend paid by a non-wholly owned Restricted Subsidiary, the Borrower or its respective Restricted Subsidiary which owns the Equity Interest in such Restricted Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interest in the Restricted Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);
(ii) the Borrower may pay cash Dividends to Holdings so long as the proceeds thereof are reasonably promptly used by Holdings (or any direct or indirect parent) to:
(A) pay franchise taxes and other fees, taxes and expenses required to maintain its corporate existence to the extent such taxes, fees and expenses are attributable to the operations of the Borrower and its Restricted Subsidiaries;
(B) [·] shall reserved];
(C) make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings (or any direct or indirect parent);
(D) pay operating and overhead costs and expenses of Holdings (or any direct or indirect parent) to the extent such costs and expenses are incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries;
(E) pay costs (including all professional fees and expenses) incurred by Holdings (or any direct or indirect parent) in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of any reports filed with respect to the Securities Act, the Exchange Act or their respective rules and regulations promulgated thereunder;
(F) pay (x) obligations under or in respect of director and officer insurance policies to the extent reasonably attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries, (y) indemnification obligations Table of Contents owing to the Sponsor and Sponsor Affiliates under the Sponsor Management Agreement (as in effect on the date hereof or as amended, modified or supplemented in accordance with Section 10.08) or (z) Transaction Expenses;
(G) be entitled used to receive pay customary salary, bonus and other benefits payable to officers and employees of Holdings (or any direct or indirect parent) to the Corporation shall extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; and
(H) make the payments permitted by Section 10.06(vii); and
(iii) the Borrower may pay thereonDividends to Holdings (or any direct or indirect parent thereof) for the purpose of enabling Holdings (or any such direct or indirect parent thereof) to redeem, as and when declared repurchase or otherwise acquire for value, Qualified Equity Interests of Holdings (or options or warrants to purchase such Qualified Equity Interests) (or any direct or indirect parent thereof) from present or former officers, directors, employees or consultants of Holdings (or any direct or indirect parent thereof), the Borrower or any of its Restricted Subsidiaries, or their estates, descendants, family, spouses or former spouses, provided that the aggregate amount of such Dividends paid by the board Borrower shall not exceed $10,000,000 (which shall increase to $20,000,000 after a Qualified IPO) (in each case, net of directors out proceeds received in connection with resales of any Equity Interests so purchased) in any Fiscal Year and in an aggregate amount not to exceed $25,000,000 for all such Dividends during the term of this Agreement; provided that such amount may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries after the Closing Date;
(iv) the Borrower and each Restricted Subsidiary may (x) declare and effect Dividends in the form of its Qualified Equity Interests and (y) pay Dividends on its Qualified Equity Interests pursuant to the terms thereof solely through the issuance of additional shares of such Qualified Equity Interests (but not in cash), provided that in lieu of issuing additional shares of such Qualified Equity Interests as Dividends, the Borrower or such Restricted Subsidiary may increase the liquidation preference of the monies shares of Qualified Equity Interests in respect of which such Dividends have accrued;
(v) the Corporation properly applicable to the payment of dividends, on each Dividend Payment Date, fixed cumulative preferential cash dividends Borrower may make Dividends in an aggregate amount equal to the quotient obtained portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (v), such election to be specified in a written notice of an Authorized Officer of the Borrower calculating in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied;
(vi) the Borrower and each Restricted Subsidiary may pay Dividends (x) on the Closing Date to consummate the Transaction, (y) in respect of working Table of Contents capital adjustments or purchase price adjustments pursuant to the Acquisition Agreement, any Permitted Acquisition or other permitted Investment and (z) in order to satisfy indemnity or other similar obligations under the Acquisition Agreement, any Permitted Acquisition or other permitted Investment;
(vii) to the extent constituting Dividends, the Borrower and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by dividing: any provision of Section 10.02 (other than Section 10.02(xvii)), Section 10.05 (other than Section 10.05(x)(y) and 10.05(xviii)) or Section 10.06 (other than Section 10.06(i));
(viii) the Borrower and its Restricted Subsidiaries may make repurchases of Equity Interests in Holdings (or any direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(ix) after a Qualified IPO, (x) the product obtained by multiplying $1,000 by Borrower or any Restricted Subsidiary may declare and effect any Dividend to pay listing fees and other costs and expenses attributable to being (or its parent company being) a rate per annum equal to the rate of interest payable by the Trust on the Trust Notes as of the Issue Date, by publicly traded company and (y) four; provided that if an event the Borrower and its Restricted Subsidiaries may declare and effect Dividends of up to 6.0% per annum of the net proceeds received by (including a redemptionor contributed to) shall occur that results in accrued the Borrower and unpaid dividends for a partial Dividend Period becoming payable, the dividend payable for any partial Dividend Periods shall be equal to the product obtained by multiplying the amount in its Restricted Subsidiaries from such Qualified IPO;
(x) above by a fractionthe Borrower and its Restricted Subsidiaries may pay other Dividends in an aggregate amount not to exceed $10,000,000 less the aggregate amount of any payments previously made in reliance on Section 10.08(iv)(x)(I);
(xi) to the extent not otherwise used to make Dividends, Investments or payments in reliance on Sections 10.03(v), 10.05(xvi), 10.05(xix) or 10.08(iv), the numerator of which is the actual number of days attributable to the partial Dividend Period Borrower and the denominator of which is 365, subject in each case to any applicable withholding tax. If on any Dividend Payment Date the dividend payable on such date is not paid in full on all of the Deferral Preferred Shares, Series-[·] then issued and outstanding, such dividend or the unpaid part thereof shall be paid on a subsequent date or dates to be determined by the board of directors on which the Corporation shall have sufficient monies properly applicable, under the provisions its Restricted Subsidiaries may pay Dividends made solely with Eligible Equity Proceeds and/or with Equity Interests of any applicable law Unrestricted Subsidiary; and
(xii) the Borrower and under its Restricted Subsidiaries may pay Dividends made with the provisions proceeds of any trust indenture securing bonds, debentures sale of an Unrestricted Subsidiary or other securities of the Corporation, to the payment of the same. The holders of the Deferral Preferred Shares, Series-[·] shall not be entitled to any dividends other than or in excess of the cumulative preferential cash dividends hereinbefore provided. Payment shall be made by electronic funds transfer or by cheque of or on behalf of the Corporation payable in lawful money of the United States (less any tax required to be deducted) and payment thereof shall satisfy such dividendsdistribution from an Unrestricted Subsidiary.
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