Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, "Restricted Payments"), except that: (a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor; (b) Permitted Issuances may be made; (c) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may (i) 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, (d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is available.
Appears in 2 contracts
Samples: Credit Agreement (International Home Foods Inc), Credit Agreement (International Home Foods Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "Restricted Payments"), of its Subsidiaries; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly to Wholly-Owned Subsidiary GuarantorDomestic Subsidiaries and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances the Company and its Subsidiaries may be madepay or make dividends or distributions to any holder of its capital stock in the form of additional shares of capital stock of the same class and type;
(c) so long as the Company may effect one or more Qualified Stock Repurchases if (i) no Default or Event of Default has occurred or would occur after giving effect thereto, (ii) the Company shall have occurred be in compliance with the financial covenants set forth in Section 9.1 in each case calculated on a pro-forma basis as of the last day of the fiscal quarter ending immediately preceding the date of such Qualified Stock Repurchase for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such cash dividend or distribution as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter and be continuing(iii) for an aggregate consideration for all such purchases from and after the Restatement Effective Date, aggregated with the Borrower may total of all amounts paid under Section 9.12(a)(v) if (ibut only if) at the time of any purchase the Borrower's common stock or common stock options from present or former officers or employees Secured Leverage Ratio of the Borrower Company and its Consolidated Subsidiaries equals or exceeds 2.75 to 1.00 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the date of any Subsidiary upon such Qualified Stock Repurchase for which the death,relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Qualified Stock Repurchase as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter), not exceeding $150,000,000 in the aggregate after the Restatement Effective Date, which amount shall be increased in the case of each such purchase if at the time such purchase is made the Secured Leverage Ratio (calculated as aforesaid) is less than 2.75 to 1.0, by any then remaining Available Amount; and
(d) so long as no Default or Event of Default shall have has occurred and be continuing or would result therefromoccur after giving effect to such declaration or payment, the Borrower Company may declare and pay cash dividends or cash distributions to the any holders of its common stockEquity Interests, provided that that, after giving effect thereto the Company (i) is in pro forma compliance with the Total Leverage Ratio and the Interest Coverage Ratio at the respective levels applicable thereto at such time any in accordance with Section 9.1, as each such dividend ratio so specified is madereduced (in the case of Section 9.1(a)) or increased (in the case of Section 9.1(b)) by 0.50 to 1.00 from the applicable levels set forth in Section 9.1, either (xii) the Consolidated Senior Secured Leverage Ratio as at the end of the most recent period Company and its Consolidated Subsidiaries is less than 2.50 to 1.00, in each case calculated on a pro forma basis as of four consecutive the last day of the fiscal quarters quarter ending immediately preceding the effective date of such cash dividend or distribution for which the relevant financial information is available is less than has been delivered to the Lenders pursuant to Section 8.1 or equal to 2.00 to 1.08.2, determined on a pro forma basis after as applicable, giving effect to the making of such cash dividend and any financing thereof or distribution as if such events occurred it had been made on the first day of the Measurement Period ending on the last day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Servicefiscal quarter, Inc and (iiiii) each such dividend or distribution is funded solely with any then remaining Available Amount at the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information time such dividend or distribution is availablemade.
Appears in 2 contracts
Samples: Credit Agreement (Be Aerospace Inc), Credit Agreement (Be Aerospace Inc)
Limitation on Dividends. Declare or pay any dividend (other than ----------------------- dividends payable solely in common stock of the Person making such dividend) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary of its Subsidiaries or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary of its Subsidiaries (collectively, "Restricted Payments"), except that:: --------------------
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be madeany payments made to the former shareholders of the Company pursuant to Section 1.11 of the Transaction Agreement;
(c) payments made on or before the Closing Date in respect of the redemption of Capital Stock of the Company held by existing shareholders in connection with the merger of DI Acquisition into the Company;
(d) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may pay dividends to the Company to permit the Company to (i) purchase the BorrowerCompany's common stock or common stock options from present or former officers or employees of the Borrower Company or any Subsidiary of its Subsidiaries upon the death,, disability or termination of employment of such officer or employee, provided, that the aggregate amount of payments -------- under this clause (i) shall not exceed $2,000,000 during any fiscal year of the Borrower and $5,000,000 during the term of this Agreement, net, in any case, of any proceeds received by the Company and contributed to the Borrower in connection with resales of any common stock or common stock options so purchased during the relevant period and (ii) pay management fees to Xxxx Capital and Xxxx Affiliates expressly permitted by Section 7.10(iii); and
(de) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that Company to permit the Company to (i) at pay corporate overhead expenses incurred in the time ordinary course of business not to exceed $250,000 in any such dividend is madefiscal year, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) pay any taxes which are due and payable by the aggregate amount Company and the Borrower as part of dividends made pursuant a consolidated group, (iii) pay fees and expenses (other than to this paragraph Affiliates) relating to the Company Zeros and (dv) shall notbeginning in fiscal year 2002, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during pay interest in cash on the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableCompany Zeros.
Appears in 1 contract
Samples: Credit Agreement (Details Inc)
Limitation on Dividends. Declare None of the Company or pay any dividend (of its Subsidiaries shall declare any dividends on the common stock of the Company other than dividends payable solely in common stock of the Person making such dividend) onCompany on any shares of any class of stock, 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, of any shares of any class of Capital Stock stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital StockCompany, whether now or hereafter outstanding, or make any other distribution in respect thereofthereof or make any loan or advance to Holdings, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "Restricted Payments"), of its Subsidiaries; except that:
that (a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Subsidiaries may pay dividends to the holders Company or to Domestic Subsidiaries or, in the case of a Foreign Subsidiary, to another Foreign Subsidiary which are directly or indirectly wholly owned by the Company and (b) the Company may pay dividends or make loans and advances as follows:
(i) prior to the time when Holdings has received senior unsecured rating from both S&P and Xxxxx'x of BBB- and Baa3, respectively, in an aggregate amount during any fiscal year not in excess of the sum of (A) the lesser of 25% of consolidated net income of the Company and its common stockSubsidiaries for such fiscal year or $10,000,000 and (B) for fiscal years beginning on or after February 1, 1998, the amount by which (I) the lesser of 25% of consolidated net income of the Company and its Subsidiaries for the prior fiscal year or $10,000,000 exceeds (II) the amount of dividends, loans or advances made in such prior fiscal year pursuant solely to this Section 7.10(i);
(ii) after and during the time when Holdings has received senior unsecured ratings from both S&P and Xxxxx'x of BBB- and Baa3, respectively, in an aggregate amount during any fiscal year not in excess of 25% of consolidated net income of the Company and its Subsidiaries for such fiscal year;
(iii) in amounts equal to amounts required for Holdings to pay Federal, state and local income taxes to the extent that such income taxes are attributable to the income of the Company and its Subsidiaries and to pay franchise taxes and other fees required to maintain its corporate existence;
(iv) in amounts equal to amounts expended by Holdings to repurchase capital stock of Holdings owned by former employees of the Company and its Subsidiaries and their assigns, estates and heirs, provided that (i) at the time any such dividend is madeamount paid, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than loaned or equal advanced to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made Holdings pursuant to this paragraph (diii) shall notnot exceed in the aggregate $10,000,000, at plus any timeamounts contributed by Holdings to the Company as a result of resales of such repurchased capital stock; and
(v) the Company shall be permitted to make payments, dividends or distributions with respect to operating costs incurred by Holdings in amounts not to exceed $4,000,000 in the aggregate during each fiscal year of the Company; Notwithstanding any of the provisions of this subsection 7.10 or subsection 7.13(i), the Company shall be permitted to prepay the Intercompany Notes or pay a dividend to Holdings from time to time in an aggregate amount since the Effective Date of up to $36,000,000; provided that in no event shall the aggregate amount in any fiscal year of such prepayments of the Intercompany Note and such payments of dividends, together with the dividends and loans and advances made pursuant to clause (b)(i) of this subsection 7.10, exceed an amount equal to during any fiscal year 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from consolidated net income of the first full Company and its Subsidiaries for such fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableyear.
Appears in 1 contract
Samples: Credit Agreement (Saks Holdings Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "of its Restricted Payments"), Subsidiaries; except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor[reserved];
(b) Permitted Issuances Restricted Subsidiaries may be madepay dividends directly or indirectly to the Company or to Wholly-Owned Domestic Subsidiaries and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company or a Restricted Subsidiary;
(c) so long as the Company and its Restricted Subsidiaries may pay or make dividends or distributions to any holder of its capital stock in the form of additional shares of capital stock of the same class and type;
(d) the Company may effect one or more Qualified Stock Repurchases if (i) no Default or Event of Default has occurred or would occur after giving effect thereto, (ii) the Company shall have occurred and be continuing, in compliance with the Borrower may (i) purchase the Borrower's common stock or common stock options from present or former officers or employees Required Ratios calculated on a pro-forma basis as of the Borrower or any Subsidiary upon the death,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end last day of the most recent period fiscal quarter ending immediately preceding the date of four consecutive fiscal quarters such Qualified Stock Repurchase for which the relevant financial information is available is less than has been delivered to the Lenders pursuant to Section 8.1 or equal 8.2, as applicable, giving effect to 2.00 such Qualified Stock Repurchase as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter and (iii) if at the time of any Qualified Stock Repurchase the Secured Leverage Ratio of the Company and its Restricted Subsidiaries equals or exceeds 2.75 to 1.0, determined 1.00 (calculated on a pro forma basis after giving effect to as of the making of such dividend and any financing thereof as if such events occurred on the first last day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after ending immediately preceding the Amendment/Restatement Closing Date through the most recent full fiscal quarter date of any such Qualified Stock Repurchase for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Qualified Stock Repurchase as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter), the maximum aggregate consideration for all such Qualified Stock Repurchases made pursuant to this clause (d) from and after the Effective Date shall not exceed $250,000,000 in the aggregate after the Effective Date; and
(e) the Company may declare and pay cash dividends or cash distributions to any holders of its Equity Interests and may effect one or more Qualified Stock Repurchases, provided that both immediately before such payment is availablemade and immediately after giving effect thereto, the Payment Conditions shall be satisfied.
Appears in 1 contract
Samples: Loan Agreement (KLX Inc.)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, stock whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary of its Subsidiaries (collectively, all of the foregoing being referred to herein as "Restricted PaymentsRESTRICTED PAYMENTS"), ; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly Owned Subsidiary Guarantorto Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company, and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances may so long as no Default or Event of Default has occurred or would occur after giving effect to such declaration or payment, the Company may, from time to time, repurchase Company stock from management employees of the Company or any of its Subsidiaries or make payments in respect of outstanding stock appreciation rights granted to management employees of the Company or any of its Subsidiaries in an aggregate amount not to exceed $5,000,000 (the "REPURCHASE LIMIT"), PROVIDED that the Repurchase Limit shall be made;increased by the proceeds of any additional Company stock which is issued to any management employees of the Company or any of its Subsidiaries after the Closing Date; and
(c) so long as no Default or Event of Default shall have has occurred and be continuingor would occur after giving effect to such declaration or payment, the Borrower may Company may, at any time (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available in effect is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period 2.00:1.00 or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate principal amount of Loans and Letters of Credit then outstanding is less than $100,000,000, declare and pay cash dividends made on the common stock of the Company and repurchase common stock of the Company, PROVIDED, that the aggregate amount paid in respect thereof in any fiscal year of the Company pursuant to this paragraph (dc) shall not, at any time, does not exceed an amount equal to 5025% of cumulative the Consolidated Net Income during the period (taken as a single accounting period) from the first full for such fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableyear.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower Details or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be madeany payments made to the former shareholders of Holdings pursuant to Section 1.11 of the Recapitalization Agreement;
(c) so long as no Default or Event any payments on the DCI Preferred Stock on the terms in existence on the date hereof and any payments of Default shall have occurred and be continuing, the Borrower may (i) 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,Deferred Payment Amounts;
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefromcontinuing, the Borrower Details may pay dividends to the holders of its common stockCompany to permit the Company to pay dividends directly, provided that or indirectly through the Company or New Intermediate Holdco, to Holdings to permit Holdings to (i) at purchase Holdings' common stock or common stock options from present or former officers or employees of Holdings or any of its Subsidiaries upon the time death, disability or termination of employment of such officer or employee, provided, that the aggregate -------- amount of payments under this clause (i) shall not exceed $4,000,000 during any fiscal year of Details and $10,000,000 during the term of this Agreement, net, in any case, of any proceeds received by Holdings and contributed to Details in connection with resales of any common stock or common stock options so purchased during the relevant period and (ii) pay management fees to Xxxx Capital and Bain Affiliates expressly permitted by Section 7.10(iii); and
(e) Details may pay dividends to the Company to permit the Company, New Intermediate Holdco or Holdings to (i) pay corporate overhead expenses incurred in the ordinary course of business not to exceed $500,000 in any fiscal year, (ii) pay any taxes which are due and payable by Holdings as part of a consolidated group of which the Company, New Intermediate Holdco and Details are members (provided that the amount of such dividend is made, either dividends shall -------- not exceed the lesser of (x) the Consolidated Senior Leverage Ratio actual cash tax liability of Holdings which is then due and payable to Governmental Authorities and (y) the cash tax liability which would be owing by the Company and its Subsidiaries to Governmental Authorities on a stand-alone basis), (iii) pay fees and expenses (other than to Affiliates) relating to the Company Zeros and the New Intermediate Holdco Notes, (iv) beginning no earlier than July 2002, pay interest in cash on the Company Zeros, (v) no earlier than December 2003 and so long as at the end no Default or Event of Default shall have occurred and be continuing, make all or any portion of the most recent period AHYDO Payment; provided, that -------- (w) prior to Details making the dividend to permit all or any portion of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal AHYDO Payment to 2.00 be made, Details shall provide a certificate to 1.0the Administrative Agent, determined certifying that on a pro forma basis basis, after giving effect to such dividend it is in compliance with all of the making of covenants contained in Section 7.1, (x) the Borrower shall not be permitted to borrow under the Revolving Credit Facility to finance such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating amount of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc such dividend shall not exceed the lesser of (I) the then unused Permitted Expenditure Amount plus $7,500,000 and (iiII) the aggregate amount of dividends made pursuant to this paragraph $35,000,000, and (dvi) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through date of the most recent full fiscal quarter for which AHYDO Payment, pay interest in cash on the relevant financial information is availableNew Intermediate Holdco Notes.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of its Capital Stock, 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, of any shares of any class of Capital Stock of Holdings, the Borrower Company or any Subsidiary of their respective Subsidiaries, or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "Restricted Payments"), of its Subsidiaries; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends to the Borrower Company or any Wholly Owned Subsidiary Guarantorto Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances the Company may, or may advance or dividend cash to Holdings so long as all such amounts are used by Holdings to, repurchase Capital Stock of Holdings owned by former, present or future employees of Holdings or its Subsidiaries or their assigns, estates and heirs, PROVIDED that the aggregate amount expended pursuant to this clause (b) shall not in the aggregate exceed (i) $3,000,000 in any fiscal year or (ii) $10,000,000 during the term of this Agreement, plus any amounts contributed to Holdings as a result of resales of such repurchased shares of Capital Stock (which amounts shall be madethereafter contributed by Holdings to the Company if the Company has dividended or advanced amounts to Holdings to enable the repurchase by Holdings of such Capital Stock);
(c) so long as no Default or Event of Default shall have occurred payments may be made to effect the Recapitalization pursuant to, -115- 122 and be continuingin accordance with the terms of, the Borrower may (i) 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,Recapitalization Agreement;
(d) the Company may pay dividends or distributions to Holdings so long as no Default or Event of Default shall have occurred and promptly used by Holdings to make payments permitted to be continuing or would result therefrom, made by it pursuant to preceding paragraph (c);
(e) the Borrower Company may pay cash dividends or distributions to Holdings for the holders purpose of paying, and so long as all proceeds thereof are promptly used by Holdings to pay, its common stockoperating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, provided without limitation, legal and accounting expenses and similar expenses), PROVIDED that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made and distributions paid to Holdings pursuant to this paragraph (de) shall notnot exceed $2,000,000 in any fiscal year of Holdings; and
(f) the Company may pay cash dividends or distributions to Holdings for the purpose of paying, at and 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 any time, exceed an amount equal refund shall be promptly returned by Holdings to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableCompany.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock Capital Stock of the Person making such dividendHoldings) 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 shares of any class of Capital Stock of Holdings or the Borrower or any Subsidiary Company or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of Holdings, the Borrower Company or any Subsidiary (collectively, "Restricted Payments")Subsidiary, except that:
(a) the Company may pay cash dividends to Holdings to pay any Subsidiary may make Restricted Payments taxes or expenses required to be paid by Holdings in the Borrower or any Wholly Owned Subsidiary Guarantorordinary course of business;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have occurred and be continuingcontinuing or would result therefrom, the Borrower Company may pay cash dividends to Holdings (i) to the extent necessary to enable Holdings to repurchase shares of its Capital Stock or options to purchase such Capital Stock, or to pay dividends on its Capital Stock, in each case in accordance with Section 7.8(f); (ii) to the Borrower's common stock extent necessary to enable Holdings to pay any annual management fee expressly permitted by Section 7.12; or common stock options from present or former officers or employees (iii) constituting payments required to be made by the Company to Holdings pursuant to the Tax Sharing Agreement; provided that Holdings shall pay each obligation in respect of which a dividend is made pursuant to this clause (b) no later than five Business Days after the Borrower or any Subsidiary upon the death,date on which such dividend is made;
(c) THIS PARAGRAPH INTENTIONALLY OMITTED;
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings may repurchase common stock of Holdings owned by former or existing employees of the Borrower Company, provided that, such repurchases are funded entirely with the proceeds of sales of newly issued common stock of Holdings to employees;
(e) THIS PARAGRAPH INTENTIONALLY OMITTED; and
(f) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings may pay dividends to the holders repurchase shares of its common stockCapital Stock or options to purchase such Capital Stock, provided and may declare and pay cash dividends on its Capital Stock, provided, that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount expended by Holdings in connection therewith shall not exceed, during the term of dividends made pursuant to this paragraph (d) shall notAgreement after the Amendment and Restatement Effective Date, at any time, exceed an amount equal to the sum of $100,000,000 plus 50% of cumulative Consolidated Net Income during of Holdings (determined for the period (taken as a single accounting period) from March 31, 1998 through the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through end of the most recent full fiscal quarter of Holdings for which the relevant financial information is available).
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) 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 shares of any class of Capital Stock of the Borrower Company or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower Company, Grove Capital or any Wholly Owned Subsidiary GuarantorSubsidiary;
(b) Permitted Issuances the Company may be madepay dividends to Holdings (and Holdings may pay any such dividends to the owners of its Capital Stock or to Grove Investors) in order to enable the direct and indirect owners of the Capital Stock of Holdings and Grove Investors to pay income taxes, determined at the Specified Rate, attributable to the taxable income of Holdings and its Subsidiaries;
(c) after the fifth anniversary of the Closing Date and so long as no Default or Event of Default shall have occurred and be continuing, the Company may pay dividends to Holdings in order to enable Holdings to pay interest when due on the Holdings Debentures;
(d) after the fifth anniversary of the Closing Date and so long as (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters ending on the last day of the most recently ended fiscal quarter is at least 2.5 to 1.0 (including on a pro-forma basis as Consolidated Interest Expense any dividends paid or to be paid in respect of such period permitted pursuant to this paragraph (d)), the Company may pay dividends to Holdings in order to enable Holdings to pay interest or scheduled dividends when due on the Holdings Mezzanine Financing;
(e) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Grove Investors or Holdings held by any member or former member of Grove Investors', Holdings' or the Company's (or any of its Subsidiaries') Board of Directors or any officers, employees, or directors or former officers, employees or directors of Grove Investors', Holdings or the Company or any Subsidiary pursuant to Grove Investors' limited liability company operating agreement or pursuant to any equity subscription agreement, stock option plan, employment agreement or other similar agreement, and any dividends to Holdings to fund any such repurchase, redemption or acquisition, provided that, subsequent to the Closing Date, the aggregate amount of the preceding payments shall not exceed (x) $2,000,000 in calendar year 1998 and thereafter $5,000,000 in any calendar year (with unused amounts, other than the $2,000,000 related to 1998 which may not be carried over, in any calendar year being carried over to succeeding calendar years subject to a maximum of $15,000,000 per calendar year) plus (y) the aggregate cash proceeds received by the Company during such calendar year from any reissuance of Capital Stock by Grove Investors, Holdings or the Company to Persons who are or become a member of Grove Investors', Holdings' or the Company's (or any of its Subsidiaries') Board of Directors or an officer or employee of Grove Investors, Holdings or the Company and provided further, however, that, (i) purchase subsequent to the Borrower's common stock Closing Date, all such payments shall not exceed $15,000,000 plus the aggregate cash proceeds received by the Company subsequent to the Closing Date from any reissuance of Capital Stock by Grove Investors, Holdings or common stock options from present or former officers or employees of the Borrower or any Subsidiary upon Company and (ii) notwithstanding the death,
parenthetical included in the preceding clause (d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefromx), the Borrower may pay dividends to the holders aggregate amount of its common stock, provided that (i) at the time any such dividend is madepayments in any calendar year shall not exceed $10,000,000 plus the aggregate cash proceeds received by the Company during such calendar year from any reissuance of Capital Stock by Grove Investors, either (x) Holdings or the Company unless the Consolidated Senior Leverage Fixed Charge Coverage Ratio as at for the end of the most recent period of four consecutive fiscal quarters for which ending on the relevant financial information on the last day of the most recently ended fiscal quarter is available is less than or equal to 2.00 at least 2.5 to 1.0, determined on a pro forma basis after giving effect ;
(f) the Company may pay dividends to Holdings to permit Holdings to make administrative and other payments (including taxes) in the ordinary course of business; and
(g) the payment of dividends or making of such dividend loans or advances for costs and any financing thereof expenses incurred by Grove Investors or Holdings in either company's capacity as if such events occurred a holding company or as issuer of the Holdings Debentures or the Senior Debentures Due 2010 of Grove Investors (the "Grove Investors Debentures"), respectively, or for services rendered by Grove Investors or Holdings on behalf of the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed Company in an amount equal not to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full exceed $2,000,000 in any fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableyear.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) 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 shares of any class of Capital Stock of the Borrower Details or any Subsidiary of its Subsidiaries or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Details or any Subsidiary of its Subsidiaries (collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower Details or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be madeany payments made to the former shareholders of Holdings pursuant to Section 1.11 of the Recapitalization Agreement;
(c) so long as no Default or Event any payments on the DCI Preferred Stock on the terms in existence on the date hereof and any payments of Default shall have occurred and be continuing, the Borrower may (i) 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,Deferred Payment Amounts;
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefromcontinuing, the Borrower Details may pay dividends to the holders Company to permit the Company to pay dividends directly, or indirectly through the Company or New Intermediate Holdco, to Holdings to permit Holdings to (i) purchase Holdings' common stock or common stock options from present or former officers or employees of Holdings or any of its common stockSubsidiaries upon the death, disability or termination of employment of such officer or employee, provided that the aggregate amount of payments under this clause (i) at shall not exceed $4,000,000 during any fiscal year of Details and $10,000,000 during the time term of this Agreement, net, in any case, of any proceeds received by Holdings and contributed to Details in connection with resales of any common stock or common stock options so purchased during the relevant period and (ii) pay management fees to Xxxx Capital and Bain Affiliates expressly permitted by Section 7.10(m); and
(e) Details may pay dividends to the Company to permit the Company, New Intermediate Holdco or Holdings to (i) pay corporate overhead expenses incurred in the ordinary course of business not to exceed $500,000 in any fiscal year, (ii) pay any taxes which are due and payable by Holdings as part of a consolidated group of which the Company, New Intermediate Holdco and Details are members (provided that the amount of such dividend is made, either dividends shall not exceed the lesser of (x) the Consolidated Senior Leverage Ratio actual cash tax liability of Holdings which is then due and payable to Governmental Authorities and (y) the cash tax liability which would be owing by the Company and its Subsidiaries to Governmental Authorities on a stand-alone basis), (iii) pay fees and expenses (other than to Affiliates) relating to the Company Zeros and the New Intermediate Holdco Notes, (iv) beginning no earlier than July 2002, pay interest in cash on the Company Zeros, (v) no earlier than December 2003 and so long as at the end no Default or Event of Default shall have occurred and be continuing, make all or any portion of the most recent period AHYDO Payment; provided, that (w) prior to Details making the dividend to permit all or any portion of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal AHYDO Payment to 2.00 be made, Details shall provide a certificate to 1.0the Administrative Agent, determined certifying that on a pro forma basis basis, after giving effect to such dividend it is in compliance with all of the making of covenants contained in Section 7.1, (x) the Borrower shall not be permitted to borrow under the Revolving Credit Facility to finance such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating amount of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc such dividend shall not exceed the lesser of (I) the then unused Permitted Expenditure Amount plus $7,500,000 and (iiII) the aggregate amount of dividends made pursuant to this paragraph $35,000,000, and (dvi) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through date of the most recent full fiscal quarter for which AHYDO Payment, pay interest in cash on the relevant financial information is availableNew Intermediate Holdco Notes.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Limitation on Dividends. Declare or pay any dividend or ----------------------- distribution (other than dividends or distributions payable solely in common stock (or equivalent forms of Capital Stock) of the Person making such dividend) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary Restricted Group Member or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary Fox/Liberty Group Member (collectively, "Restricted ---------- Payments"), except that:
(a) any Subsidiary Restricted Group Affiliated Member may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary GuarantorRestricted Group Subsidiary;
(b) Permitted Issuances any Restricted Group Subsidiary that is not a Wholly Owned Restricted Group Subsidiary and any Restricted Group Joint Venture may be made;make Restricted Payments to the respective holders of its Capital Stock so long as any such holder that is a Restricted Group Member receives at least a pro rata share thereof; --- ----
(c) any Restricted Group Member may make Restricted Payments to its investors in an amount equal to the anticipated income tax liability of such investor resulting from the earnings of such Restricted Group Member, provided, that, in the case of the Borrower, (i) prior to the making of -------- each such distribution, the Borrower shall have delivered to the Administrative Agent a letter from a Responsible Officer of the Borrower setting forth in reasonable detail the highest federal, state and local tax rates applicable to the members of the Borrower (after giving effect to deductions for such state and local taxes applicable thereto) and (ii) the maximum percentage permitted to be so long as distributed with respect to any fiscal year of the Borrower shall not exceed the lesser of (A) the percentage representing the maximum aggregate rate described in clause (i) above for such fiscal year and (B) 42%;
(d) the Borrower may make Restricted Payments to Fox/Liberty for the purpose of funding the payment of interest on the Fox/Liberty Notes or the Additional Fox/Liberty Debt that is required to be paid in cash, provided -------- that after giving effect to the making thereof, no Default or Event of Default (including pursuant to Section 6.1 on a pro forma basis) shall have --- ----- occurred and be continuing; and
(e) the Borrower may make Restricted Payments to Fox/Liberty, provided that (i) after giving effect to the making thereof, no Default or -------- Event of Default (including pursuant to Section 6.1 on a pro forma basis) --- ----- shall have occurred and be continuing, the Borrower may (iii) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of date such period or (y) Restricted Payment is made the Borrower has a long-term senior secured debt rating of Senior Notes and the Senior Discount Notes shall in each case be publicly rated at least BBB- from by Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors by Xxxxx'x Investors Service, Inc Inc. and (iiiii) the aggregate amount of dividends Restricted Payments made pursuant to this paragraph (de) in any fiscal year of the Borrower shall not, at any time, not exceed an amount equal to 5025% of cumulative Consolidated Net Income during Combined Excess Cash Flow in respect of the period (taken as a single accounting period) from the first full immediately preceding fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableyear.
Appears in 1 contract
Samples: Credit Agreement (FLN Finance Inc)
Limitation on Dividends. Declare Directly or indirectly declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment Distribution on account ofits capital stock or to members, as the case may be, or set apart assets for a sinking redeem, retire, purchase or other analogous fund forotherwise acquire, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash any ownership or property other equity interest of either Borrower now or in obligations hereafter outstanding (or any options or rights issued with respect thereto), or set aside any funds for any of the Borrower or any Subsidiary foregoing purposes (collectivelyexcept as otherwise contemplated by this Section 6.02(i)); PROVIDED, HOWEVER, that Distributions may be paid by OLAC to OLAC Holding, OLAC Holding to CogenAmerica and by CogenAmerica to its shareholders upon the satisfaction of the following conditions: (i) not less than thirty (30) days prior to the proposed date of payment of such Distribution (the "Restricted PaymentsDistribution Payment Date"), except that:
(a) any Subsidiary may make Restricted Payments each Cogen Entity shall have respectively delivered to the Borrower or any Wholly Owned Subsidiary Guarantor;
Lender a certificate (bthe date of such certificate hereinafter referred to as the "Certification Date") Permitted Issuances may signed by the chief financial officer and chief executive officer of such Cogen Entity stating and demonstrating (with appropriate analysis and documentation attached thereto) that (A) at no time during the six (6) month period commencing on the Certification Date (the "Calculation Period") will the sum of the then unencumbered (and unreserved) cash of OLAC plus its Projected EBIDA for such Calculation Period be made;
less than the sum of the scheduled principal and interest payments due on the Loan for the next two (c2) so long as Interest Payment Dates, and (B) no Default or Event of Default shall have has occurred and be is then continuing, the Borrower may (i) 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,
(d) so long as and after giving effect to such proposed Distribution, no Default or Event of Default shall have occurred and would occur or reasonably be continuing or would result therefrom, the Borrower may pay dividends anticipated to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc occur and/or be continuing; and (ii) the aggregate amount certifications set forth in the above-referenced certificates remain true and correct as of dividends the Distribution Payment Date. Distributions may be made pursuant to this paragraph CogenAmerica if the certificates contemplated above are delivered and no Default or Event of Default has occurred and is continuing as of the Distribution Payment Date; (dj) AMENDMENT, TERMINATION, ETC. OF PROJECT AGREEMENTS. Terminate, cancel or suspend, or permit or consent to any termination, cancellation or suspension of, or enter into or consent to or permit the assignment of the rights or obligations of any party to, any of the Project Agreements or Governmental Approvals. Each of the Cogen Entities shall not, at directly or indirectly amend, modify, supplement or waive, or permit or consent to the amendment, modification, supplement or waiver of, any timeof the provisions of, exceed an amount equal or give any consent under, any of the Project Agreements without (i) first submitting to 50% the Lender a copy of cumulative Consolidated Net Income during such proposed amendment, modification, supplement, waiver or consent and (ii) obtaining the period express prior written consent of the Lender, PROVIDED that no such consent shall be required with respect to any proposed amendment, modification, supplement, waiver or consent (taken as a single accounting periodA) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is available.that does not pertain to
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend on (other than dividends payable solely in common stock of the Person making such dividend) onBorrower), 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 shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, "Restricted Payments")Subsidiary, except that:
(a) any Subsidiary may declare and pay dividends to or make Restricted Payments other distributions to the Borrower or to any Wholly other Wholly-Owned Subsidiary which is a Guarantor;; and
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the Borrower, following the Initial Period, may redeem or purchase Capital Stock or rights to acquire Capital Stock using proceeds from the issuance of Capital Stock or rights to acquire Capital Stock, (ii) the Borrower may use and issue its own Capital Stock (A) to purchase or acquire issued and outstanding shares of its Capital Stock, warrants, options, debt instruments convertible into or other rights to purchase the Borrower's Capital Stock, (B) to satisfy the exercise of stock options or warrants or (C) in connection with any employee benefit plan of the Borrower or its Subsidiaries, (iii) the Borrower may redeem rights to purchase preferred stock or common stock issued to the Borrower's shareholders for an aggregate amount not to exceed $250,000 during the term of this Agreement, (iv) on or after the Shell Transaction Completion Date, the Borrower may pay dividends to on the holders Preferred Stock and (v) the Borrower, following the Initial Period, may declare and pay cash dividends or, repurchase, redeem or acquire shares of its common stockCapital Stock, provided that so long as no more than $1,000,000 (iand $2,000,000 after the Shell Transaction Completion Date) at in the time aggregate is expended for such purpose during any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end fiscal year of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableBorrower.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of Parent or the Person making such dividendBorrower) 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 shares of any class of Capital Stock of Parent or the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectivelysuch declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being herein called "Restricted Payments"), except that:
(a) any Subsidiary the Borrower may make Restricted Payments to Parent, so long as (except with respect to clause (iii) below or with respect to clause (iv) below such a Restricted Payment may be made except when an Event of Default which relates to a payment default pursuant to Section 12(a) has occurred and is continuing) no Event of Default has occurred or is continuing after giving effect to such Restricted Payment:
(i) the Borrower proceeds of which shall be used to pay the reasonable overhead of Parent (including out of pocket expenses for administrative, legal and accounting services or any Wholly Owned Subsidiary Guarantorto pay franchise fees or similar costs) in an amount not to exceed $1,000,000 per year;
(bii) Permitted Issuances may payments, the proceeds of which will be madeused to repurchase the Capital Stock or other securities of Parent from outside directors, employees or members of management of Parent or any Subsidiary, at a price not in excess of fair market value, in an aggregate amount not in excess of $2,500,000 in any fiscal year of the Borrower and $5,000,000 in the aggregate for the duration of this Agreement, 76 71 net of the proceeds received by the Borrower as a result of any resales of any such Capital Stock or other securities;
(ciii) so long as no Default or Event of Default shall have occurred and be continuingpayments, the Borrower may proceeds of which will be used to pay taxes of Parent as part of a consolidated group;
(iiv) payments, the proceeds of which will be used to pay management fees to Hickx Xxxe & Co. Partners, L.P. in accordance with the terms of its monitoring and oversight agreement and the financial advisory agreement;
(v) if such Restricted Payment is a purchase of Capital Stock or a distribution to Parent to permit Parent to purchase its Capital Stock, in either case, made in order to fulfil the Borrower's common stock or common stock options from present or former officers or employees obligations of Parent, the Borrower or any Subsidiary upon the death,under an employee stock purchase plan or similar plan covering employees of Parent or any Subsidiary as from time to time in effect in an aggregate net amount not to exceed $1,000,000; and
(dvi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrompayments, the Borrower may pay dividends proceeds of which will be used to make payments on the holders of its common stockSenior Discount Notes or Seller Subordinated Notes if permitted hereunder, provided that (i) at the time any such dividend is madeincluding, either (x) the Consolidated Senior Leverage Ratio as at the end but not limited to, prepayments or repurchases of the most recent period of four consecutive fiscal quarters for which Seller Subordinated Notes or the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableSenior Discount Notes permitted by subsection 11.16(b).
Appears in 1 contract
Samples: Credit Agreement (Ero Marketing Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividendCompany or an increase in the stated value of the Preferred Shares) 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 shares of any class of Capital Stock of the Borrower Company or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectivelySubsidiary, "Restricted Payments"), except thatexcept:
(a) any Subsidiary may make Restricted Payments pursuant to the Borrower or any Wholly Owned Subsidiary GuarantorMerger in accordance with the Recapitalization Documents (subject to Section 8.6(e));
(b) Permitted Issuances the Company may repurchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company held by employees of the Company or any of its Subsidiaries pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, provided that (A) the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock shall not exceed $5,000,000, and (B) no Default or Event of Default shall have then occurred and be madecontinuing or would result therefrom;
(c) so long as any Subsidiary may declare and pay dividends to the Company or to a Subsidiary of the Company that is a Guarantor;
(d) dividends may be declared and paid on the Preferred Shares following the fifth anniversary of the Closing Date, provided that no Default or Event of Default shall have occurred and be continuingcontinuing or would result therefrom;
(e) payments to holders of Dissenting Shares in satisfaction or release of their rights or claims under Section 262 of the General Corporation Law of the State of Delaware, subject to the Borrower provisions of Schedule 8.6; and
(f) the Company may repurchase, redeem, or otherwise acquire for value any Capital Stock of the Company (other than Capital Stock held by employees pursuant to agreements of 77 84 the type referred to in Section 8.6(b) or Capital Stock owned by the Sponsor or any of its Affiliates) from public shareholders of the Company, provided that (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph purchase price paid for all such repurchased, redeemed, acquired or retired Capital Stock (dthe "Aggregate Redemption Amount") shall notnot exceed on the date of any such repurchase, at any timeredemption, exceed an amount acquisition, or retirement (a "Redemption Date") the greater of (A) $5,000,000 or (B) the Aggregate Redemption Amount specified below that corresponds to the Leverage Ratio on the relevant Redemption Date: Leverage Aggregate Redemption Ratio Amount -------- -------------------- Less than or equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is available.4.0 to $7,500,000 1.0 but greater than 3.5 to 1.0 Less than or equal to 3.5 to $10,000,000 1.0 but greater than 2.75 to 1.0 Less than or equal to 2.75 to 1.0 $12,500,000
Appears in 1 contract
Samples: Credit Agreement (Juno Lighting Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "of its Restricted Payments"), Subsidiaries; except that:
(a) any Subsidiary the Company may make Restricted Payments distribute all the issued and outstanding common stock of KLX to the Borrower or any Wholly Owned Subsidiary GuarantorCompany’s shareholders;
(b) Permitted Issuances Restricted Subsidiaries may be madepay dividends directly or indirectly to the Company or to Wholly-Owned Domestic Subsidiaries and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company or a Restricted Subsidiary;
(c) the Company and its Restricted Subsidiaries may pay or make dividends or distributions to any holder of its capital stock in the form of additional shares of capital stock of the same class and type;
(d) the Company may effect one or more Qualified Stock Repurchases if (i) no Default or Event of Default has occurred or would occur after giving effect thereto, (ii) the Company shall be in compliance with the financial covenants set forth in Section 9.1 in each case calculated on a pro-forma basis as of the last day of the fiscal quarter ending immediately preceding the date of such Qualified Stock Repurchase for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such cash dividend or distribution as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter and (iii) if at the time of any purchase the Total Leverage Ratio of the Company and its Restricted Subsidiaries equals or exceeds 2.50 to 1.00 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the date of any such Qualified Stock Repurchase for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Qualified Stock Repurchase as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter), the maximum aggregate consideration for (x) all such purchases made pursuant to this clause (d) and (y) all cash dividends and cash distributions under clause (e) of this Section 9.9, from and after the Effective Date, shall not exceed the sum of $400,000,000 plus the remaining Available Amount; and
(e) so long as no Default or Event of Default shall have has occurred and be continuingor would occur after giving effect to such declaration or payment, the Borrower Company may declare and pay cash dividends or cash distributions to any holders of its Equity Interests, provided that, after giving effect thereto (i) purchase the Borrower's common stock or common stock options from present or former officers or employees Company is in compliance with the Total Leverage Ratio and the Interest Coverage Ratio at the respective levels applicable thereto at such time in accordance with Section 9.1 and the Total Leverage Ratio of the Borrower or any Subsidiary upon the death,
Company and its Restricted Subsidiaries is less than 2.50 to 1.00 (d) so long in each case, calculated on a pro forma basis as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period last day of four consecutive the fiscal quarters quarter ending immediately preceding the effective date of such cash dividend or distribution for which the relevant financial information is available is less than has been delivered to the Lenders pursuant to Section 8.1 or equal to 2.00 to 1.08.2, determined on a pro forma basis after as applicable, giving effect to the making of such cash dividend and any financing thereof or distribution as if such events occurred it had been made on the first day of the Measurement Period ending on the last day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Servicefiscal quarter), Inc and (ii) the maximum aggregate amount of dividends consideration for (x) all Qualified Stock Repurchases made pursuant to this paragraph clause (d) shall notof this Section 9.9 and (y) all such cash dividends and cash distributions under this clause (e), at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing and after the Amendment/Restatement Closing Date through Effective Date, shall not exceed the most recent full fiscal quarter for which sum of $400,000,000 plus the relevant financial information is availableremaining Available Amount.
Appears in 1 contract
Samples: Loan Agreement (B/E Aerospace Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary of its Subsidiaries (collectively, all of the foregoing being referred to herein as "Restricted Payments"), ; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly Owned Subsidiary Guarantorto Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company, and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have has occurred and be continuingor would occur after giving effect to such declaration or payment, the Borrower may (i) purchase the Borrower's common Company may, from time to time, repurchase stock or common stock options from present or former officers or management employees of the Borrower Company and its Subsidiaries in an aggregate amount not to exceed $10,000,000.00 (the "Dividend Limit");
(c) the Company and its Subsidiaries may pay or make dividends or distributions to any Subsidiary upon holder of its Capital Stock in the death,form of additional shares of capital stock of the same class and type; and
(d) so long as no Default or Event of Default shall have has occurred and be continuing or would result therefromoccur after giving effect to such declaration or payment, the Borrower Company may declare and pay cash dividends or distributions to the any holders of its common stockEquity Interests (1) in an aggregate amount not to exceed $25,000,000.00 during any fiscal year, provided that (i) at that, after giving effect thereto the time any such dividend is made, either Company (x) shall be in compliance with the Consolidated Senior covenants set forth in Section 9.1 and (y) shall have a Secured Leverage Ratio of less than 2.5 to 1, in each case calculated on a pro forma basis as at the end of the most recent period last day of four consecutive the fiscal quarters quarter ending immediately preceding the effective date of such cash dividend or distribution for which the relevant financial information is available is less than has been delivered to the lenders pursuant to Section 8.1 or equal to 2.00 to 1.08.2, determined on a pro forma basis after as applicable, giving effect to the making of such cash dividend and any financing thereof or distribution as if such events occurred it had been made on the first day of the Measurement Period ending on the last day of such period fiscal quarter or (y2) during any fiscal year in which the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Serviceconditions set forth in clause (1) were not satisfied, Inc and (ii) the in an aggregate amount which, when added to any amounts paid under clause (iv) of dividends made pursuant Section 9.12 during such year, shall not to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is available$10,000,000.00.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary of its Subsidiaries (collectively, "all of the foregoing being referred to herein as “Restricted Payments"”), ; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly Owned Subsidiary Guarantorto Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company, and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances the Company may be madepay dividends to HoldCo in an amount equal to the amount required for HoldCo to pay franchise taxes, fees and expenses necessary to maintain its status as a corporation, and other fees required to maintain its corporate existence, provided that HoldCo shall promptly pay such taxes, fees and expenses;
(c) so long as no Default or Event of Default shall have has occurred and be continuingor would occur after giving effect to such declaration or payment, the Borrower may (i) purchase Company may, from time to time, declare and pay cash dividends to HoldCo on the Borrower's common stock or common of the Company in an aggregate amount not to exceed $15,000,000 (the “HoldCo Dividend Limit”); provided that the proceeds of such dividends shall be used within 30 days of the receipt of such dividends by HoldCo to repurchase HoldCo stock options from present or former officers or management employees of the Borrower HoldCo or any Subsidiary upon of its Subsidiaries and, provided further, the death,HoldCo Dividend Limit shall be increased by the proceeds of any additional HoldCo capital stock which is issued to any management employees of HoldCo or any of its Subsidiaries so long as such proceeds are contributed by HoldCo to the capital of the Company;
(d) any Permitted Minority-Interest Subsidiary may declare and pay dividends and make other Restricted Payments with respect to the capital stock of such Subsidiary now or hereafter outstanding; provided, in the case of a dividend, each stockholder of such Subsidiary receives its ratable share thereof;
(e) subject to applicable subordination provisions the Company may declare and pay regularly scheduled semi-annual dividends on the Subordinated Preferred Stock when due;
(f) the Company may exchange at par all or a portion of the Subordinated Preferred Stock for a Company Subordinated Note;
(g) subject to the applicable subordination provisions, the Company may pay dividends to HoldCo in an amount equal to the amount required to be paid by HoldCo in respect of the HoldCo Notes; provided, that, such dividend payment may only be made to the extent that such interest is not otherwise being paid pursuant to payments on the Subordinated Notes and only so long as no Default or Event of Default shall have has occurred and be continuing or would result therefrom; provided further, that any such dividend payments occur within one (1) Business Day of such interest coming due;
(h) the Borrower Company may pay dividends make Restricted Payments to HoldCo in an aggregate amount not to exceed $25,000,000; provided however, that no such Restricted Payment shall be made by the holders Company if a Default or Event of its common stock, provided that Default then exists or would result from the making of such Restricted Payment; and
(i) the Company may make Restricted Payments to HoldCo, if at the time any of each such dividend is made, either Restricted Payment (xand after giving effect thereto) the ratio of Consolidated Senior Leverage Ratio Total Debt to Consolidated EBITDA computed on a pro forma basis as at the end of the most recent recently completed period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 5.0 to 1.01.0 (and including in such calculation of Consolidated Total Indebtedness the amount of any Indebtedness the proceeds of which are used to fund such Restricted Payment) provided, determined on however, that no such Restricted Payments shall be made by the Company if a pro forma basis after giving effect to Default or Event of Default then exists or would result from the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends Restricted Payments. All pro forma calculations required to be made pursuant to this paragraph shall (di) shall not, at any time, exceed an amount equal include only those adjustments that are based on reasonably detailed written assumptions reasonably acceptable to 50% of cumulative Consolidated Net Income during the period Administrative Agent and (taken ii) be certified to by a Responsible Officer as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availablehaving been prepared in good faith based upon reasonable assumptions.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary of its Subsidiaries (collectively, "all of the foregoing being referred to herein as “Restricted Payments"”), ; except that:
(a) any Subsidiary Subsidiaries may pay dividends and make Restricted Payments directly or indirectly to the Borrower Company or to Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company and to any Wholly Owned other owner of its Capital Stock (provided that in the case of a Restricted Payment by a non-wholly owned Subsidiary, to the Company and any other Subsidiary Guarantorand to each other owner of Capital Stock of such Subsidiary based on their relative ownership interests of the relevant class of Capital Stock), and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) the Company is in pro forma compliance with the covenants set forth in subsection 8.1, recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available as if such Restricted Payment had occurred on the first day of such period for purposes of calculating Consolidated EBITDA and using Consolidated Total Indebtedness as of the date of, and after giving effect to, such Restricted Payment, (iii) at the time of such Restricted Payment and after giving effect thereto, there are no Revolving Credit Loans or Swing Line Loans outstanding and (iv) the Company has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) and (iii) above, together with all relevant financial information, the Company may be madepay dividends and repurchase shares of any class of capital stock in an aggregate amount not to exceed the Available Amount; provided that the foregoing limitation to the Available Amount shall not apply if and as long as at the time of such Restricted Payment the Consolidated Total Leverage Ratio, recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available as if such Restricted Payment had occurred on the first day of such period for purposes of calculating Consolidated EBITDA and using Consolidated Total Indebtedness as of the date of, and after giving effect to, such Restricted Payment, is less than 2.0 to 1.0;
(c) so long as no Default or Event of Default shall have occurred and be continuingthen exists or would result therefrom, the Borrower Company may (i) purchase the Borrower's its common stock or common stock options from present or former officers or employees of the Borrower Company or any Subsidiary of its Subsidiaries upon the death,, disability or termination of employment of such officer or employee, provided, that the amount of payments under this clause (c) after the Closing Date shall not exceed $5,000,000 in the aggregate in any fiscal year of the Company (with unused amounts in any fiscal year being carried over to succeeding fiscal years subject to a maximum (without giving effect to the following proviso) of $10,000,000 in any fiscal year of the Company); provided further that such amount in any fiscal year may be increased by an amount not to exceed (i) the cash proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Company and, to the extent contributed to the Company, Capital Stock of any of the Company’s direct or indirect parent companies, in each case to any employee, member or the board of directors or consultant of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Capital Stock have not been included in the calculation of the Available Amount; plus (ii) the cash proceeds of key man life insurance policies received by the Company or its Subsidiaries after the Closing Date; less (iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii);
(d) so long as no Default or Event of Default then exists or would result therefrom , the Company may make payments and/or net shares under employee benefit plans to settle option price payments owed by employees and directors with respect thereto, make payments in respect of or purchase restricted stock units and similar stock based awards thereunder and to settle employees’ and directors’ federal, state and income tax liabilities (if any) related thereto, provided that the aggregate amount of payments made by the Company after the Closing Date shall have occurred and be continuing not exceed $5,000,000 in any fiscal year (with unused amounts in any fiscal year of the Company being carried over to succeeding fiscal years subject to a maximum of $10,000,000 in any fiscal year);
(e) so long as no Default or Event of Default then exists or would result therefrom, the Borrower Company may pay make dividends or distributions payable solely in Capital Stock (other than Disqualified Stock) of the Company;
(f) so long as no Default or Event of Default then exists or would result therefrom, the Company and its Subsidiaries may make dividends or distributions 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;
(g) so long as no Default or Event of Default then exists or would result therefrom, the Company and its Subsidiaries may make cash payments in lieu of the issuance of fractional shares or interests in connection with the exercise of warrants, options or other rights or securities convertible into or exchangeable for Capital Stock of the Company or any direct or indirect parent company of the Company; provided that any such cash payment shall be for the purpose of evading the limitation of this covenant; and
(h) the Company may redeem, repurchase, retire or acquire any Capital Stock of the Company or any Capital Stock of any direct or indirect parent company of the Company, in exchange for, or out of the proceeds of, the substantially concurrent sale or issuance (other than to a Subsidiary) of, Capital Stock of the Company or any direct or indirect parent company of the Company to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect extent contributed to the making of such dividend and Company (in each case, other than any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableDisqualified Stock).
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "Restricted Payments"), of its Subsidiaries; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly to Wholly-Owned Subsidiary GuarantorDomestic Subsidiaries and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances the Company and its Subsidiaries may be madepay or make dividends or distributions to any holder of its capital stock in the form of additional shares of capital stock of the same class and type;
(c) so long as the Company may effect one or more Qualified Stock Repurchases if (i) no Default or Event of Default has occurred or would occur after giving effect thereto, (ii) the Company shall have occurred be in compliance with the financial covenants set forth in Section 9.1 in each case calculated on a pro-forma basis as of the last day of the fiscal quarter ending immediately preceding the date of such Qualified Stock Repurchase for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such cash dividend or distribution as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter and be continuing(iii) for an aggregate consideration for all such purchases from and after June 11, 2008, aggregated with the Borrower may total of all amounts paid under Section 9.12(a)(v) if (ibut only if) at the time of any purchase the Borrower's common stock or common stock options from present or former officers or employees Secured Leverage Ratio of the Borrower Company and its Consolidated Subsidiaries equals or exceeds 2.75 to 1.00 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the date of any Subsidiary upon such Qualified Stock Repurchase for which the death,relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Qualified Stock Repurchase as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter), not exceeding $150,000,000 in the aggregate, which amount shall be increased in the case of each such purchase if at the time such purchase is made the Secured Leverage Ratio (calculated as aforesaid) is less than 2.75 to 1.0, by any then remaining Available Amount; and
(d) so long as no Default or Event of Default shall have has occurred and be continuing or would result therefromoccur after giving effect to such declaration or payment, the Borrower Company may declare and pay cash dividends or cash distributions to the any holders of its common stockEquity Interests, provided that that, after giving effect thereto the Company (i) is in pro forma compliance with the Total Leverage Ratio and the Interest Coverage Ratio at the respective levels applicable thereto at such time any in accordance with Section 9.1, as each such dividend ratio so specified is madereduced (in the case of Section 9.1(a)) or increased (in the case of Section 9.1(b)) by 0.50 to 1.00 from the applicable levels set forth in Section 9.1, either (xii) the Consolidated Senior Secured Leverage Ratio as at the end of the most recent period Company and its Consolidated Subsidiaries is less than 2.50 to 1.00, in each case calculated on a pro forma basis as of four consecutive the last day of the fiscal quarters quarter ending immediately preceding the effective date of such cash dividend or distribution for which the relevant financial information is available is less than has been delivered to the Lenders pursuant to Section 8.1 or equal to 2.00 to 1.08.2, determined on a pro forma basis after as applicable, giving effect to the making of such cash dividend and any financing thereof or distribution as if such events occurred it had been made on the first day of the Measurement Period ending on the last day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Servicefiscal quarter, Inc and (iiiii) each such dividend or distribution is funded solely with any then remaining Available Amount at the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information time such dividend or distribution is availablemade.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividendCompany) 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 ofof (other than for payment solely in common stock of the Company), any shares of any class of Capital Stock of the Borrower or any Subsidiary Company or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary Restricted Subsidiary, provided that at any time that (collectively, "Restricted Payments"), except that:
(ai) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have has occurred and be continuing, the Borrower may (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be is continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that therefrom and (i) at the time any such dividend is made, either (xii) the Consolidated Senior Total Leverage Ratio as at the end of each of the then most recent period of four recently ended two consecutive fiscal quarters of the Company for which the relevant financial information is available statements have been delivered pursuant to subsection 7.1 is less than 5.00:1.00, the Company may repurchase common stock of the Company held by shareholders other than that held by any employee, officer or equal director of the Company or any Restricted Subsidiary so long as (A) the aggregate amount applied to 2.00 such repurchases does not exceed $25,000,000 in any calendar year, (B) the Total Leverage Ratio immediately upon giving effect to 1.0, determined any such repurchase is less than 5.00:1.00 on a pro forma basis basis, using for the purposes of such determination Consolidated Operating Cash Flow for the four-quarter period ended on the last day of the second fiscal quarter referred to in clause (ii) above and Indebtedness on the date of such determination after giving effect to the making of such dividend repurchase and any financing thereof as if such events occurred on the first day of such period or borrowings made concurrently therewith, and (yC) the Borrower has a long-term senior secured debt rating Company shall have provided to each Lender reasonably prior to the date of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant each such repurchase pro forma projections showing compliance with this Agreement after giving effect to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availablesuch repurchase.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividendCompany) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary Company or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectivelysuch declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being herein called "Restricted Payments"), except that:
(a) any a Subsidiary may declare and make Restricted Payments to if all of the Borrower Capital Stock of such Subsidiary is owned by the Company or any Wholly Owned by a direct or indirect wholly-owned Subsidiary Guarantorof the Company;
(b) Permitted Issuances the Company may be madefrom time to time declare and make Restricted Payments if such Restricted Payments are payable solely in shares of Capital Stock (or options, warrants or rights therefor) of the Company;
(c) so long as the Company may from time to time purchase, redeem, retire or acquire shares of its Capital Stock that were sold in FQ4 1999 to certain employees, directors and consultants of the Company in exchange for notes receivable, if on the date of such purchase, redemption, retirement or acquisition or immediately thereafter and after giving effect thereto, no Default or Event of Default or Default shall have occurred and be continuing, the Borrower may (i) 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,exist;
(d) so long as no Default or Event the Company may issue shares of Default shall have occurred its Capital Stock in connection with contributions made by the Company on behalf of employees of the Company and be continuing or would result therefrom, the Borrower may pay dividends its Subsidiaries to the holders Company's 401(k) Plan;
(e) the Company may issue shares of its common stock, provided that Class A Common Stock upon conversion of shares of its Class B Common Stock to Class A Common Stock pursuant to and in accordance with the terms of the Class B Common Stock;
(i) at the time any such dividend is made, either (xf) the Consolidated Senior Leverage Ratio as at Company may issue shares of its Capital Stock upon the end exercise of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect options granted with respect thereto pursuant to the making terms of such dividend and any financing thereof as if such events occurred on the first day of such period or options; and
(yg) the Borrower has a long-term senior secured debt rating Company may repurchase shares of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) its Capital Stock from the first full fiscal quarter commencing estate of Paul S. Bush with the proceeds of a life insurance xxxxxx xx xxe life of Paul S. Bush, as more fully described in Schedule 10.0(x). The Company shall not declare any dividend payable later than 90 days after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availabledeclaration and shall not permit any Subsidiary to declare any dividend payable later than 15 days after declaration.
(o) Amendment to Subsection 10.10;
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Bush Industries Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "of its Restricted Payments"), Subsidiaries; except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor[reserved];
(b) Permitted Issuances Restricted Subsidiaries may be madepay dividends directly or indirectly to the Company or to Wholly-Owned Domestic Subsidiaries and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company or a Restricted Subsidiary;
(c) so long as the Company and its Restricted Subsidiaries may pay or make dividends or distributions to any holder of its capital stock in the form of additional shares of capital stock of the same class and type;
(d) the Company may effect one or more Qualified Stock Repurchases if (i) no Default or Event of Default has occurred or would occur after giving effect thereto, (ii) the Company shall have occurred and be continuing, in compliance with the Borrower may (i) purchase the Borrower's common stock or common stock options from present or former officers or employees Required Ratios calculated on a pro-forma basis as of the Borrower or any Subsidiary upon the death,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end last day of the most recent period fiscal quarter ending immediately preceding the date of four consecutive fiscal quarters such Qualified Stock Repurchase for which the relevant financial information is available is less than has been delivered to the Lenders pursuant to Section 8.1 or equal 8.2, as applicable, giving effect to 2.00 such Qualified Stock Repurchase as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter and (iii) if at the time of any Qualified Stock Repurchase the Secured Leverage Ratio of the Company and its Restricted Subsidiaries equals or exceeds 2.75 to 1.0, determined 1.00 (calculated on a pro forma basis after giving effect to as of the making of such dividend and any financing thereof as if such events occurred on the first last day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after ending immediately preceding the Amendment/Restatement Closing Date through the most recent full fiscal quarter date of any such Qualified Stock Repurchase for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Qualified Stock Repurchase as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter), the maximum aggregate consideration for all such Qualified Stock Repurchases made pursuant to this clause (d) from and after the Effective Date shall not exceed $250,000,000 in the aggregate after the Effective Date; and
(e) the Company may declare and pay cash dividends or cash distributions to any holders of its Equity Interests and may effect one or more Qualified Stock Repurchases, provided that both immediately before such payment is availablemade and immediately after giving effect thereto, the Payment Conditions shall be satisfied ; and
(f) the Company or any Restricted Subsidiary may effect the ESG Spin-Off.
Appears in 1 contract
Samples: Credit Agreement (KLX Inc.)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) 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 shares of any class of Capital Stock of the any Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the such Borrower or any Subsidiary (collectively, "Restricted Payments")Subsidiary, except thatfor:
(a) any Subsidiary may make Restricted Payments to the Borrower dividends, payments or any Wholly Owned Subsidiary Guarantordistributions solely in common stock of a Borrower;
(b) Permitted Issuances may be madedividends to CNG in an amount sufficient to allow CNG to pay interest on the Senior Subordinated Notes, the Senior Subordinated 1997 Notes and the Senior Subordinated 2002 Notes in accordance with the terms of each thereof, PROVIDED that CNG actually uses such dividends to make such payments of interest;
(c) so long as no Default or Event of Default shall have occurred and be continuingcontinuing or would occur after giving effect to such dividend, dividends to CNG in an aggregate amount (declared or paid subsequent to the Borrower may (iClosing Date) 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,not to exceed $50,000,000 solely to allow CNG to repurchase Senior Subordinated Notes, Senior Subordinated 1997 Notes and/or Senior Subordinated 2002 Notes without violating Section 9(m);
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis occur after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Servicedividend, Inc and (ii) the dividends to CNG in an aggregate amount (declared or paid subsequent to the Closing Date) not to exceed $4,000,000 solely to allow CNG or CNC to repurchase, redeem, or otherwise acquire or retire for value, any Capital Stock of CNG or CNC or any current or former Subsidiary of CNG held by any of CNG's (or any of its Subsidiaries') current or former employees;
(e) payments or distributions in respect of taxes, as provided in the Tax Sharing Agreement, to the extent actually used to pay taxes to a taxing authority; and
(f) dividends made pursuant to this paragraph (d) shall not, at any time, CNG in an aggregate amount not to exceed an amount equal to 50.25% of cumulative Consolidated Net Income during the period aggregate net sales of the Borrowers and their Subsidiaries for any fiscal year solely for the purpose of enabling CNC to pay the ordinary operating and administrative expenses of CNC (taken including all reasonable professional fees and expenses) in connection with complying with its reporting obligations and obligations to prepare and distribute business records in the ordinary course of business and CNC's costs and expenses relating to taxes (which taxes are attributable to the operations of CNG and its Subsidiaries or to CNC's ownership thereof) for such fiscal year; and
(g) so long as a single accounting periodno Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such dividend, dividends to CNG other than dividends otherwise permitted under any of the foregoing clauses (a) from the first full through (f) in an aggregate amount not to exceed $10,000,000 in any fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableyear.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary of its Subsidiaries (collectively, "all of the foregoing being referred to herein as “Restricted Payments"”), ; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly Owned Subsidiary Guarantorto Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company, and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) so long as (i) no Default or Event of Default then exists or would result therefrom and (ii) the Company is in pro forma compliance with the applicable Consolidated Total Leverage Ratio as of the most recently completed period of four consecutive fiscal quarters ending prior to such Restricted Payment for which the financial statements and certificates required by subsections 7.1 and 7.2 have been delivered, determined after giving pro forma effect to such Restricted Payment as if such Restricted Payment had occurred as of the first day of such period, and using Consolidated Total Indebtedness as of the date of, and after giving effect to, such Restricted Payment, the Company may pay dividends and repurchase shares of any class of capital stock in an aggregate amount not to exceed the sum of (x) $25,000,000 plus (y) Cumulative Retained Excess Cash Flow to the extent not used to finance a Permitted Issuances may be madeAcquisition or asset swap pursuant to subsection 8.6(q);
(c) so long as no Default or Event of Default shall have occurred and be continuingthen exists or would result therefrom, the Borrower Company may (i) purchase the Borrower's its common stock or common stock options from present or former officers or employees of the Borrower Company or any Subsidiary of its Subsidiaries upon the death,, disability or termination of employment of such officer or employee, provided, that the amount of payments under this clause (c) after the Closing Date shall not exceed $5,000,000 in the aggregate in any fiscal year of the Company; and
(d) so long as no Default or Event of Default shall have occurred and be continuing then exists or would result therefromtherefrom , the Borrower Company may pay dividends make payments and/or net shares under employee benefit plans to the holders settle option price payments owed by employees and directors with respect thereto, make payments in respect of its common stockor purchase restricted stock units and similar stock based awards thereunder and to settle employees’ and directors’ federal, state and income tax liabilities (if any) related thereto, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends payments made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during by the period (taken as a single accounting period) from the first full fiscal quarter commencing Company after the Amendment/Restatement Closing Date through the most recent full shall not exceed $5,000,000 in any fiscal quarter for which the relevant financial information is availableyear.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividendBorrower) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectivelysuch declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being herein called "Restricted Payments"). Notwithstanding the foregoing, except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have occurred and be continuinghowever, the Borrower may (i) purchase repurchase the Borrower's common stock or common stock options from present or former officers or employees Capital Stock of the Borrower pursuant to any currently existing or subsequently adopted stock repurchase program without any Subsidiary upon limitation, provided, that the death,
(d) so long ratio of Consolidated Total Indebtedness to Consolidated EBITDA as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period last day of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined any Rolling Period (calculated on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events repurchase of Capital Stock of the Borrower, and the incurrence of any Indebtedness by any Loan Party in connection therewith, had occurred on immediately prior to such day) is less than 1.00 to 1. From and after the first last day of such period or any Rolling Period (ybeginning with the Rolling Period ended immediately prior to the December 2002 Amendment Effective Date) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information ratio of Consolidated Total Indebtedness to Consolidated EBITDA as of the last day of any such Rolling Period (calculated on a pro forma basis as if such repurchase of Capital Stock of the Borrower, and the incurrence of any Indebtedness by any Loan Party in connection therewith, had occurred immediately prior to such day) is available1.00 to 1 or greater (such day, the "Limitation Date"), the Borrower shall be subject to a limitation of $15,000,000 in the aggregate for all such repurchases of Capital Stock (the "Limitation") from and after the Limitation Date. The Limitation described previously shall not be applicable during any subsequent Rolling Period in which the ratio described herein for such Rolling Period is less than 1.00 to 1. For any subsequent Rolling Period in which the ratio described herein for such Rolling Period is 1.00 to 1 or greater, the Limitation shall again be $15,000,000 in the aggregate from and after any such subsequent Rolling Period."
Appears in 1 contract
Limitation on Dividends. Declare If Debt Securities are issued to a WPSR Trust or a trustee of such trust in connection with the issuance of Trust Securities by such WPSR Trust and (a) there shall have occurred any event that would constitute an Event of Default, or (b) the Company shall be in default with respect to its payment of any obligations under the Trust Preferred Securities Guaranty or Trust Common Securities Guaranty relating to such Trust Securities, or (c) the Company shall have given notice of its election to defer payments of interest on Debt Securities by extending the interest payment period as provided in the Board Resolution and Officers' Certificate or indenture supplemental hereto establishing such series of Debt Securities, and such period, or any extension thereof, shall be continuing, then (x) the Company shall not declare or pay any dividend on, make any distribution with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock (other than dividends payable solely in common stock (i) repurchases or acquisitions of the Person making such dividend) onCompany's common shares as contemplated by any employment arrangement, or make any payment on account of, or set apart assets for a sinking benefit plan or other analogous fund forsimilar contract with or for the benefit of employees, officers or directors entered into in the purchaseordinary course of business, redemption(ii) repurchases of common shares of the Company as contemplated by the Company Stock Investment Plan or Company Deferred Compensation Plan as in effect immediately prior to the occurrence of such Event of Default or the date upon which the Company gives notice of its election to extend the interest payment period, defeasanceas applicable, retirement (iii) as a result of an exchange or other acquisition of, any shares conversion of any class of Capital Stock or series of the Borrower Company's capital stock for the Company's common shares, provided that such class or any Subsidiary series of the Company's capital stock was outstanding prior to the occurrence of such Event of Default or any warrants the date upon which the Company gives notice of its election to extend the interest payment period, as applicable, (iv) the purchase of fractional interests in shares of the Company's cpital stock pursuant to the conversion or options exchange provisions of such Company capital stock or the security being converted or exchanged, provided that such Company capital stock or security was outstanding prior to purchase any the occurrence of such Capital StockEvent of Default or the date upon which the Company gives notice of its election to extend the interest payment period, whether now or hereafter outstandingas applicable, or make (v) the payment of any other distribution stock dividend where the dividend is paid in respect thereofthe form of the same stock as that on which the dividend is paid), either (y) the Company shall not directly or indirectly, whether in cash and shall not allow any of its Subsidiaries to, make any payment of interest, principal or property premium, if any, on or in obligations of repay, repurchase or redeem any debt securities issued by the Borrower Company that rank pari passu with or any Subsidiary (collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments junior to the Borrower or any Wholly Owned Subsidiary Guarantor;
Debt Securities, and (bz) Permitted Issuances may be made;
(c) so long as no Default or Event of Default the Company shall have occurred and be continuing, the Borrower may (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends not make guaranty payments with respect to the holders of its common stock, provided that foregoing (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less other than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect pursuant to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableTrust Preferred Securities Guaranty).
Appears in 1 contract
Samples: Indenture (WPSR Capital Trust I)
Limitation on Dividends. Declare or pay any dividend (other than ----------------------- dividends payable solely in common stock of the Person making such dividend) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary of its Subsidiaries or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary of its Subsidiaries (collectively, "Restricted Payments"), except that:: -------------------
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be madeany payments made to the former shareholders of the Company pursuant to Section 1.11 of the Transaction Agreement;
(c) payments made on or before the Closing Date in respect of the redemption of Capital Stock of the Company held by existing shareholders in connection with the merger of DI Acquisition into the Company;
(d) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may pay dividends to the Company to permit the Company to
(i) purchase the BorrowerCompany's common stock or common stock options from present or former officers or employees of the Borrower Company or any Subsidiary of its Subsidiaries upon the death,, disability or termination of employment of such officer or employee, provided, that the aggregate amount of payments -------- under this clause (i) shall not exceed $2,000,000 during any fiscal year of the Borrower and $5,000,000 during the term of this Agreement, net, in any case, of any proceeds received by the Company and contributed to the Borrower in connection with resales of any common stock or common stock options so purchased during the relevant period and (ii) pay management fees to Xxxx Capital and Xxxx Affiliates expressly permitted by Section 7.10(iii); and
(de) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that Company to permit the Company to (i) at pay corporate overhead expenses incurred in the time ordinary course of business not to exceed $250,000 in any such dividend is madefiscal year, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events occurred on the first day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) pay any taxes which are due and payable by the aggregate Company and the Borrower as part of a consolidated group, (iii) pay fees and expenses (other than to Affiliates) relating to the Company Interim Credit Facility and any refinancing thereof which is not prohibited by Section 7.9, (iv) repay the amount of dividends made pursuant by which the net proceeds to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) Company from the first issuance of the Company Zeros are insufficient to repay in full the Company Interim Credit Facility and (v) beginning in fiscal quarter commencing after year 2002, pay interest in cash on the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableCompany Zeros.
Appears in 1 contract
Samples: Credit Agreement (Details Inc)
Limitation on Dividends. (a) (a) Declare or pay any dividend (other than dividends payable solely in Convertible Preferred or common stock of the Person making such dividendMerisel) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary Merisel, or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Merisel, or any Subsidiary (collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances enter into any derivative or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating Merisel or any Loan Party to make payments to such Derivatives Counterparty as a result of any change in value of any such Capital Stock (such declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions, and such transactions with any Derivatives Counterparties, being herein called “Restricted Payments”). Notwithstanding the foregoing clause (a), Merisel, at any time on or after the Restatement Effective Date, may effect one or more transactions that together shall cause Merisel to no longer be made;
a reporting company under Sections 12 or 15 of the Exchange Act (cthe “Stock Repurchase Transactions”); provided, that (x) so long as no Default any payments, expenses or Event of Default fees in connection with the Stock Repurchase Transactions shall have occurred not exceed $2,500,000.00 in the aggregate, (y) immediately before and be continuingafter giving effect to the Stock Repurchase Transactions, the Borrower may (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) Borrowers and each Corporate Guarantor are in compliance with the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of covenants set forth in Section 9.1 recomputed for the most recent period of four consecutive fiscal quarters recently ended quarter for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis after but giving effect to the making Stock Repurchase Transactions and are in compliance with all other terms and conditions of such dividend this Agreement, and (z) Merisel shall be eligible to file, and shall file, notices with the Securities and Exchange Commission of its withdrawal from reporting company status within nine (9) months from the date of the adoption of a plan by the Board of Directors of Merisel through board resolutions to become a non-reporting company; provided further that no later than ten (10) calendar days after Merisel becomes a non-reporting company under the Exchange Act the Loan Parties shall provide the Lender with evidence of the transition to non-reporting status along with evidence of consummation of the Stock Repurchase Transactions including any filings, notices, opinions of counsel and any financing thereof as if such events occurred on the first day of such period other documents, agreement or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services instruments contemplated by and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableexecuted in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Merisel Inc /De/)
Limitation on Dividends. Declare or pay any dividend or distribution on (other than dividends dividends, including splits, payable solely in common stock non-mandatorily redeemable Capital Stock or mandatorily redeemable Capital Stock that does not require redemption prior to the first anniversary of the Person making such dividend) onRevolving Credit Termination Date), 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 shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Restricted Subsidiary (collectivelysuch declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being herein called "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made;
(c) so as long as no Default or Event of Default shall have has occurred and be continuing, the Borrower may (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be is continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that make Restricted Payments (i) at as permitted under the time any such dividend is madePartnership Agreement on its Capital Stock, either including its Series F Units and the General Partnership Interest, or (xii) the Consolidated Senior Leverage Ratio as at the end out of the most recent period net cash proceeds of four consecutive fiscal quarters for which an issuance of Common Units or out of the relevant financial information is available is less than net cash proceeds of an issuance of Senior Notes or equal to 2.00 to 1.0Senior Subordinated Notes, determined on a pro forma basis after giving effect to the making in each case occurring within 120 days of such dividend and any financing thereof as if such events occurred on the first day of such period or Restricted Payment; SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(yb) the Borrower has a long-term senior secured debt rating may exchange or convert Series C Units for or into Common Units in accordance with the terms of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and the Series C Units;
(iic) the aggregate amount Borrower may issue Common Units in exchange for Senior Notes, Senior Subordinated Notes or other debt securities in connection with the conversion of dividends made pursuant to this paragraph any Series F Units in accordance with the terms of the Series F Units; and
(d) shall notacquisitions by officers, at any time, exceed an amount equal directors and other representatives of the Borrower or the General Partner of Capital Stock of the Borrower through cashless exercise of options pursuant to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availablecommon unit option plan will not constitute a Restricted Payment.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary of its Subsidiaries (collectively, all of the foregoing being referred to herein as "Restricted Payments"), ; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly Owned Subsidiary Guarantorto Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company, and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have has occurred and be continuingor would occur after giving effect to such declaration or payment, the Borrower may (i) purchase the Borrower's common Company may, from time to time, repurchase stock or common stock options from present or former officers or management employees of the Borrower Company and its Subsidiaries in an aggregate amount not to exceed $10,000,000.00 (the "Dividend Limit");
(c) the Company and its Subsidiaries may pay or make dividends or distributions to any Subsidiary upon holder of its Capital Stock in the death,form of additional shares of capital stock of the same class and type; and
(d) so long as no Default or Event of Default shall have has occurred and be continuing or would result therefromoccur after giving effect to such declaration or payment, the Borrower Company may declare and pay cash dividends or distributions to the any holders of its common stockEquity Interests (1) in an aggregate amount not to exceed $25,000,000.00 during any fiscal year, provided that (i) at that, after giving effect thereto the time any such dividend is made, either Company (x) shall be in compliance with the Consolidated Senior covenants set forth in Section 9.1 and (y) shall have a Secured Leverage Ratio of no more than 2.5 to 1, in each case calculated on a pro forma basis as at the end of the most recent period last day of four consecutive the fiscal quarters quarter ending immediately preceding the effective date of such cash dividend or distribution for which the relevant financial information is available is less than has been delivered to the lenders pursuant to Section 8.1 or equal to 2.00 to 1.08.2, determined on a pro forma basis after as applicable, giving effect to the making of such cash dividend and any financing thereof or distribution as if such events occurred it had been made on the first day of the Measurement Period ending on the last day of such period fiscal quarter or (y2) during any fiscal year in which the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Serviceconditions set forth in clause (1) were not satisfied, Inc and (ii) the in an aggregate amount which, when added to any amounts paid under clause (iv) of dividends made pursuant Section 9.12 during such year, shall not to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is available$ 10,000,000.00.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock on any shares of the Person making such dividend) onany class of stock, 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, of any shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stockstock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower Company or any Subsidiary (collectively, "Restricted Payments"), of its Subsidiaries; except that:
(a) any Subsidiary Subsidiaries may make Restricted Payments pay dividends directly or indirectly to the Borrower Company or any Wholly to Wholly-Owned Subsidiary GuarantorDomestic Subsidiaries and Foreign Subsidiaries may pay dividends directly or indirectly to Foreign Subsidiaries which are directly or indirectly wholly-owned by the Company;
(b) Permitted Issuances the Company and its Subsidiaries may be madepay or make dividends or distributions to any holder of its capital stock in the form of additional shares of capital stock of the same class and type;
(c) so long as the Company may effect one or more Qualified Stock Repurchases if (i) no Default or Event of Default shall have has occurred or would occur after giving effect thereto and be continuing(ii) (x) with respect to Qualified Stock Repurchases for an aggregate consideration, together with the aggregate of all amounts paid under Section 9.12(a)(v)(C)(x), not exceeding $150,000,000 in the aggregate, the Borrower may Company shall be in compliance with the covenants set forth in Section 9.1 and (iy) purchase with respect to Qualified Stock Repurchases funded with any Available Amount, (1) the Borrower's common stock or common stock options from present or former officers or employees Company shall be in compliance with the covenants set forth in Section 9.1 and (2) the Secured Leverage Ratio of the Borrower Company and its Consolidated Subsidiaries is less than 2.75 to 1.00, in each case calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the date of any such Qualified Stock Repurchase for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or any Subsidiary upon 8.2, as applicable, giving effect to such Qualified Stock Repurchase as if it had been made on the death,first day of the Measurement Period ending on the last day of such fiscal quarter; and
(d) so long as no Default or Event of Default shall have has occurred and be continuing or would result therefromoccur after giving effect to such declaration or payment, the Borrower Company may declare and pay cash dividends or distributions to the any holders of its common stockEquity Interests, provided that that, after giving effect thereto the Company (i) is in pro forma compliance with the Total Leverage Ratio and the Interest Coverage Ratio at the respective levels applicable thereto at such time any in accordance with Section 9.1, as each such dividend ratio so specified is madereduced (in the case of Section 9.1(a)) or increased (in the case of Section 9.1(b)) by .50 to 1.00 from the applicable levels set forth in Section 9.1, either (xii) the Consolidated Senior Secured Leverage Ratio as at the end of the most recent period Company and its Consolidated Subsidiaries is less than 2.50 to 1.00, in each case calculated on a pro forma basis as of four consecutive the last day of the fiscal quarters quarter ending immediately preceding the effective date of such cash dividend or distribution for which the relevant financial information is available is less than has been delivered to the Lenders pursuant to Section 8.1 or equal to 2.00 to 1.08.2, determined on a pro forma basis after as applicable, giving effect to the making of such cash dividend and any financing thereof or distribution as if such events occurred it had been made on the first day of the Measurement Period ending on the last day of such period or (y) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Servicefiscal quarter, Inc and (iiiii) the aggregate amount of such dividends made pursuant to this paragraph (d) shall not, at any time, and distributions does not exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableAvailable Amount.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividendBorrower) 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 shares of any class of Capital Stock of the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectivelysuch declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being herein called "Restricted Payments"). Notwithstanding the foregoing, except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made;
(c) so long as no Default or Event of Default shall have occurred and be continuinghowever, the Borrower may (i) purchase repurchase the Borrower's common stock or common stock options from present or former officers or employees Capital Stock of the Borrower pursuant to any currently existing or subsequently adopted stock repurchase program without any Subsidiary upon limitation, provided, that the death,
(d) so long as no Default or Event ratio of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio Indebtedness to Consolidated EBITDA as at the end of the most recent period last day of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined any Rolling Period (calculated on a pro forma basis after giving effect to the making of such dividend and any financing thereof as if such events repurchase of Capital Stock of the Borrower, and the incurrence of any Indebtedness by any Loan Party in connection therewith, had occurred on immediately prior to such day) is less than 1.0 to 1.0. From and after the first last day of such period or any Rolling Period (ybeginning with the Rolling Period ended immediately prior to the Closing Date) the Borrower has a long-term senior secured debt rating of at least BBB- from Standard & Poor's Ratings Services and at least Baa3 from Moodx'x Xxxestors Service, Inc and (ii) the aggregate amount of dividends made pursuant to this paragraph (d) shall not, at any time, exceed an amount equal to 50% of cumulative Consolidated Net Income during the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information ratio of Consolidated Senior Indebtedness to Consolidated EBITDA as of the last day of any such Rolling Period (calculated on a pro forma basis as if such repurchase of Capital Stock of the Borrower, and the incurrence of any Indebtedness by any Loan Party in connection therewith, had occurred immediately prior to such day) is available1.0 to 1.0 or greater (such day, the "Limitation Date"), the Borrower shall be subject to a limitation of $15,000,000 in the aggregate for all such repurchases of Capital Stock (the "Limitation") from and after the Limitation Date. The Limitation described previously shall not be applicable during any subsequent Rolling Period in which the ratio described herein for such Rolling Period is less than 1.0 to 1.0. For any subsequent Rolling Period in which the ratio described herein for such Rolling Period is 1.0 to 1.0 or greater, the Limitation shall again be $15,000,000 in the aggregate from and after any such subsequent Rolling Period.
Appears in 1 contract
Limitation on Dividends. Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) 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, (a) the Warburg Subordinated Debt or (b) any shares of any class of Capital Stock of the Parent or the Borrower or any Subsidiary or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, (other than, in the case of the Warburg Subordinated Debt, pay-in-kind interest thereon) either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made;
(c) Borrower; provided that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may (i) 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,
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay dividends to the holders of its common stock, provided that (i) at the time any such dividend is made, either (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available is less than or equal to 2.00 to 1.0, determined on a pro forma basis both before and after giving effect to the making distribution and repayment contemplated by this proviso):
(i) with the consent of such dividend the Agent and any financing thereof as if such events occurred on the first day of such period or (y) Lenders, the Borrower has a long-term senior secured debt rating may declare and pay dividends to the Parent and the Parent may repay up to an aggregate amount of at least BBB- from Standard & Poor's Ratings Services $5,000,000 of the Warburg Subordinated Debt or Capital Stock held by Warburg, provided that within 45 days thereafter the Permitted Senior Notes shall be issued or Warburg shall return such funds to the Parent in return for Warburg Subordinated Debt and at least Baa3 from Moodx'x Xxxestors Service, Inc and the Parent shall provide such funds as equity capital to the Borrower; and
(ii) at any time after the Issuance Date, the Borrower may purchase, redeem or otherwise acquire for value shares of Capital Stock (other than Disqualified Capital Stock) or options on such shares held by the Borrower's officers or employees or former officers or employees (or their estates or beneficiaries under their estates) upon the death, disability, retirement or termination of employment of such current or former officers or employees pursuant to the terms of an employee benefit plan or any other agreement pursuant to which such shares of Capital Stock or options were issued or pursuant to a severance, buy-sale or right of first refusal agreement with such current or former officer or employee; provided that the aggregate amount of cash consideration paid, or distributions or payments made (which may include distributions or dividends made to the Parent for such purpose) pursuant to this paragraph clause (dii) shall notnot exceed $10,000,000 in the aggregate. Notwithstanding the preceding sentence, at any timeBorrower may declare and make dividend payments to Parent as long as Parent uses such amounts to pay (A) franchise taxes and other fees required to maintain Parent's corporate existence and (B) federal, exceed an amount equal to 50% of cumulative Consolidated Net Income during state and local income taxes payable by the period (taken as a single accounting period) from the first full fiscal quarter commencing after the Amendment/Restatement Closing Date through the most recent full fiscal quarter for which the relevant financial information is availableParent.
Appears in 1 contract
