Common use of Restricted Payments; Management Fees Clause in Contracts

Restricted Payments; Management Fees. Make any Restricted Payments in any fiscal year or pay any management fees or similar fees to any Person in any fiscal year; provided that: (a) so long as no Event of Default shall have occurred and be continuing or would be directly or indirectly caused as a result thereof, the Borrower may pay management fees to Holdings in an aggregate amount not to exceed $1,500,000 in any fiscal year; provided that (i) the applicable management agreement or similar documentation between Holdings and the Borrower in respect of such fees shall be in form and substance reasonably acceptable to the Required Lenders and (ii) all such fees and other reimbursement or payment obligations of the Borrower to Holdings pursuant to any such agreement shall be subordinated to the Subdebt Obligations on terms and conditions and pursuant to documentation in each case in form and substance reasonably acceptable to the Required Lenders; (b) so long as no Event of Default shall have occurred and be continuing or would be directly or indirectly caused as a result thereof, the Borrower may make Restricted Payments to the Parent the proceeds of which shall be used by the Parent (i) to make cash payments of interest on the Indebtedness evidenced by the Holdback Note on each applicable interest payment date in accordance with the terms of the Holdback Note and the subordination terms applicable thereto, (ii) to make cash payments of principal of the Indebtedness evidenced by the Holdback Note on (and not prior to) the applicable maturity date (which shall a date no earlier than the date 20 months after the Amendment Effective Date); and (c) any Subsidiary of the Borrower may pay dividends or make other distributions to the Borrower or any to other Subsidiary of the Borrower that is a Loan Party.

Restricted Payments; Management Fees. Make (a) None of the Guarantor, the Borrower nor any of their respective Subsidiaries will declare or pay any Restricted Payments (other than Restricted Payments payable solely in any fiscal year Equity Interests (exclusive of Disqualified Stock) of the Guarantor or pay any management fees or similar fees to any Person in any fiscal year; provided that: (a) so long as no Event of Default shall have occurred and be continuing or would be directly or indirectly caused as a result thereofthe Borrower), the Borrower may pay management fees to Holdings in an aggregate amount not to exceed $1,500,000 in any fiscal year; provided except that (ix) the applicable management agreement or similar documentation between Holdings and the Borrower in respect of such fees shall be in form and substance reasonably acceptable to the Required Lenders and (ii) all such fees and other reimbursement or payment obligations each Subsidiary of the Borrower to Holdings pursuant to any such agreement shall be subordinated to the Subdebt Obligations on terms and conditions and pursuant to documentation in each case in form and substance reasonably acceptable to the Required Lenders; (b) so long as no Event of Default shall have occurred and be continuing Guarantor or would be directly or indirectly caused as a result thereof, the Borrower may make Restricted Payments to the Parent Guarantor or the proceeds Borrower, as applicable, and (y) the Borrower and/or the Guarantor may make Restricted Payments so long as (A) no Default or Event of which Default has occurred and is continuing or would result from such Restricted Payment, and (B) both before and after giving effect to such Restricted Payment, the Consolidated Total Leverage Ratio calculated as of the end of the most recently ended fiscal quarter is less than or equal to 3.00 to 1.00. (b) The Borrower will not pay any management fees or similar compensation to the Manager, unless at least one Business Day prior to the Borrower’s planned payment of cash management fees or similar compensation to the Manager, the Guarantor shall be used have contributed to the Borrower cash (net of any cash dividends received by the Parent Guarantor from the Borrower since the date of the most recent payment of such cash management fees or similar compensation) in an amount equal to the difference of (i) the amount of cash management fees or similar compensation to make cash payments of interest on the Indebtedness evidenced by the Holdback Note on each applicable interest payment date in accordance with the terms of the Holdback Note and the subordination terms applicable thereto, be paid less (ii) an amount equal to make cash payments the product of principal of the Indebtedness evidenced by the Holdback Note on (and not prior toA) the applicable maturity date average number of Portfolio Railcars during the period for which management fees or similar compensation are payable times (which shall a date no earlier than B) the date 20 product of (x) 25 times (y) the number of months after the Amendment Effective Date); andin such period. (c) At least one Business Day prior to the making of any Subsidiary Restricted Payment or payment of any management fees described in clause (a) and (b) above, the Borrower will provide the Agent a compliance certificate demonstrating pro forma compliance (after giving effect to such Restricted Payment or payment of management fees) as of the Borrower may pay dividends or make other distributions to the Borrower or any to other Subsidiary last day of the Borrower that is a Loan PartyBorrower’s most recently ended fiscal quarter.

Restricted Payments; Management Fees. Make Each Note Party will not, and will not permit any of its Subsidiaries to, make any Restricted Payments in any fiscal year or pay any management fees or similar fees to any Person in any fiscal yearPayment; provided thatprovided, that so long as it is permitted by law: (aA) so long each Subsidiary of a Note Party may make Restricted Payments to any Note Party; (B) the Note Parties may consummate repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made or deemed to be made in connection with any exercise, vesting, settlement or exchange, as no Event applicable, of Default shall have occurred and be continuing stock options, warrants, restricted stock, restricted stock units or would be directly other similar rights under the Management Incentive Plan or indirectly caused as a result thereofany other equity incentive plan of the Company approved by the stockholders of the Company, the Borrower may pay management fees to Holdings in an aggregate amount not to exceed $1,500,000 in 5,000,000 during any fiscal yearcalendar year and $15,000,000 during the term of this Indenture; provided that such amounts available for such repurchases shall be reduced by the amount of any Restricted Payment made according to clause (D) below; provided, further that, each of the Payment Conditions shall be satisfied prior to the making of such repurchase, redemption, acquisition or retirement; (C) the Note Parties may make other Restricted Payments in an aggregate amount not to exceed the portion, if any, of the Available Amount that Note Parties elect to use to make a Restricted Payment, such election to be specified in a written notice of an Officer of the Company calculating in reasonable detail the amount of the Available Amount immediately prior to such election and the amount thereof to be so applied; provided, that each of the following conditions is satisfied: (i) the applicable management agreement no Event of Default has occurred or similar documentation between Holdings and the Borrower in respect is continuing of such fees shall be in form and substance reasonably acceptable to the Required Lenders would result therefrom, and (ii) all after giving pro forma effect to such fees and other reimbursement or payment obligations of payment, (x) the Borrower Fixed Charge Coverage Ratio for the latest Measurement Period ending prior to Holdings pursuant to any such agreement date shall be subordinated at least 1.10 to 1.00, and (y) the Subdebt Obligations on terms and conditions and pursuant Total Net Leverage Ratio for the latest Measurement Period ending prior to documentation in each case in form and substance reasonably acceptable to the Required Lenders; (b) so long as no Event of Default shall have occurred and be continuing or would be directly or indirectly caused as a result thereof, the Borrower may make Restricted Payments to the Parent the proceeds of which such date shall be used no greater than 3.00 to 1.00; provided that, for purpose hereof the Available Amount shall be deemed reduced by the Parent amount of any Restricted Payment made according to clause (iD) to make cash payments of interest on the Indebtedness evidenced by the Holdback Note on each applicable interest payment date in accordance with the terms of the Holdback Note and the subordination terms applicable thereto, (ii) to make cash payments of principal of the Indebtedness evidenced by the Holdback Note on (and not prior to) the applicable maturity date (which shall a date no earlier than the date 20 months after the Amendment Effective Date)below; and (cD) any Subsidiary amounts paid by the Company as withholding taxes in connection with net share settlements of such securities under the Management Incentive Plan or any other equity incentive plan of the Borrower may pay dividends or make other distributions to Company approved by the Borrower or any to other Subsidiary stockholders of the Borrower that is a Loan PartyCompany.

Restricted Payments; Management Fees. Make (a) None of the Guarantor, the Borrower nor any of their respective Subsidiaries will declare or pay any Restricted Payments (other than Restricted Payments payable solely in any fiscal year Equity Interests (exclusive of Disqualified Stock) of the Guarantor or pay any management fees or similar fees to any Person in any fiscal year; provided that: (a) so long as no Event of Default shall have occurred and be continuing or would be directly or indirectly caused as a result thereofthe Borrower), the Borrower may pay management fees to Holdings in an aggregate amount not to exceed $1,500,000 in any fiscal year; provided except that (ix) the applicable management agreement or similar documentation between Holdings and the Borrower in respect of such fees shall be in form and substance reasonably acceptable to the Required Lenders and (ii) all such fees and other reimbursement or payment obligations each Subsidiary of the Borrower to Holdings pursuant to any such agreement shall be subordinated to the Subdebt Obligations on terms and conditions and pursuant to documentation in each case in form and substance reasonably acceptable to the Required Lenders; (b) so long as no Event of Default shall have occurred and be continuing Guarantor or would be directly or indirectly caused as a result thereof, the Borrower may make Restricted Payments to the Parent Guarantor or the proceeds Borrower, as applicable, and (y) the Borrower and/or the Guarantor may make Restricted Payments so long as (A) no Default or Event of which Default has occurred and is continuing or would result from such Restricted Payment, and (B) both before and after giving effect to such Restricted Payment, the Consolidated Total Leverage Ratio calculated as of the end of the most recently ended fiscal quarter is less than or equal to 3.00 to 1.00. (b) The Borrower will not pay any management fees or similar compensation to the Manager, unless at least one Business Day prior to the Borrower’s planned payment of cash management fees or similar compensation to the Manager, the Guarantor shall be used have contributed to the Borrower cash (net of any cash dividends received by the Parent Guarantor from the Borrower since the date of the most recent payment of such cash management fees or similar compensation) in an amount equal to the difference of (i) the amount of cash management fees or similar compensation to make cash payments of interest on the Indebtedness evidenced by the Holdback Note on each applicable interest payment date in accordance with the terms of the Holdback Note and the subordination terms applicable thereto, be paid less (ii) an amount equal to make cash payments the product of principal of the Indebtedness evidenced by the Holdback Note on (and not prior toA) the applicable maturity date average number of Portfolio Railcars during the period for which management fees or similar compensation are payable times (which shall a date no earlier than B) the date 20 product of (x) 25 times (y) the number of months after the Amendment Effective Date); andin such period. (c) At least one Business Day prior to the making of any Subsidiary Restricted Payment or payment of any management fees described in subsections (a) and (b) above, the Borrower will provide the Agent a compliance certificate demonstrating pro forma compliance (after giving effect to such Restricted Payment or payment of management fees) as of the Borrower may pay dividends or make other distributions to the Borrower or any to other Subsidiary last day of the Borrower that is a Loan PartyBorrower’s most recently ended fiscal quarter.

Restricted Payments; Management Fees. Make Declare or make, directly or indirectly, any Restricted Payments in Payment, or incur any fiscal year obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions or pay any management fees or similar fees to any Person in any fiscal year; provided Management Fee, except that: (a) , so long as no Event of Default shall have occurred and be continuing at the time of any action described below or would be directly or indirectly caused as a result thereof, the Borrower may pay management fees to Holdings in an aggregate amount not to exceed $1,500,000 in any fiscal year; provided that (i) the applicable management agreement or similar documentation between Holdings and the Borrower in respect of such fees shall be in form and substance reasonably acceptable to the Required Lenders and (ii) all such fees and other reimbursement or payment obligations of the Borrower to Holdings pursuant to any such agreement shall be subordinated to the Subdebt Obligations on terms and conditions and pursuant to documentation in each case in form and substance reasonably acceptable to the Required Lenders;therefrom: (ba) so long as no Event of Default shall have occurred and be continuing or would be directly or indirectly caused as a result thereof, the Borrower each Subsidiary may make Restricted Payments to the Parent Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of which shall be used by new common Equity Interests; (d) the Parent Borrower may make other Restricted Payments from time to time so long as after giving effect to any such Restricted Payment, (i) no Default shall have occurred, (ii) the Consolidated Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the most recently completed Measurement Period of the Borrower calculated on a pro forma basis giving effect to such Restricted Payment shall be no greater than 3.00 to 1.00 and (iii) the Consolidated Fixed Charge Coverage Ratio of the Borrower and its Subsidiaries as of the last day of the most recently ended fiscal quarter of the Borrower calculated on a pro forma basis giving effect to such Restricted Payment shall be no less than the minimum ratio for such quarter permitted by Section 7.11(b); (e) the Borrower may declare and pay cash dividends to Holdings not to exceed an amount necessary to permit Holdings to pay (i) reasonable and customary corporate and operating expenses (including reasonable out-of-pocket expenses for legal, administrative and accounting services provided by third parties, and compensation, benefits and other amounts payable to officers and employees in connection with their employment in the ordinary course of business and to board of director observers), and (ii) franchise fees or similar taxes and fees required to maintain its corporate existence; (f) the Borrower may issue and sell its common Equity Interests and accept capital contributions in respect thereof; (g) the Borrower may make cash regularly scheduled payments of interest on in respect of the Indebtedness evidenced by the Holdback Note on each applicable interest payment date Senior Secured Notes in accordance with the terms of, and only to the extent required by, and subject to the provisions contained in, the Senior Secured Note Documents and the Collateral Trust Agreement; (h) dividends or other distributions (not in excess of $5,000,000 in the aggregate) to any direct or indirect parent entity of the Holdback Note Borrower of amounts necessary to repurchase Equity Interests of such Person to the extent required by any Gaming Authority for not more than the fair market value thereof in order to avoid the suspension, revocation or denial by any Gaming Authority of a gaming license or other authorization necessary for the ownership, maintenance, lease, financing or operation of the gaming business of the Borrower and its Subsidiaries or any subsequently acquired gaming property, in any event to the subordination terms extent such suspension, revocation or denial would have a Material Adverse Effect; provided, that so long as such efforts do not jeopardize any Gaming License or other authorization, such parent entity and its Subsidiaries shall have diligently and in good faith previously attempted to find a third-party purchaser(s) for such Equity Interests and no third-party purchaser(s) acceptable to the applicable theretoGaming Authority was willing to purchase such Equity Interests within a time period acceptable to such Gaming Authority; (i) so long as the Borrower and Holdings are each properly treated as a partnership or disregarded entity for U.S. federal, state and local tax purposes, payments from the Borrower to Holdings, and from Holdings to equity owners of Holdings, to enable such equity owners to pay the relevant federal, state and local tax liability of such equity owners attributable to the Borrower (and any Subsidiary that is treated as a pass-through entity for U.S. federal, state and local tax purposes) for each taxable year; provided, that the aggregate amount of such payments made by the Borrower for each taxable year shall not exceed (i) the U.S. federal taxable income of the Borrower (assuming the Borrower and such Subsidiaries together were one hypothetical taxpayer) for such taxable year, reduced (but not below zero) by (to the extent not previously taken into account) any U.S. federal taxable loss of the Borrower (or any such Subsidiaries) for any prior period multiplied by (ii) the maximum U.S. federal and state combined tax rate applicable to make cash payments any such equity owner; provided further, that the computation of principal of the Indebtedness evidenced by the Holdback Note on such tax liability shall take into account (and not prior toi) the deductibility of state and local income taxes for U.S. federal income tax purposes, computed as if the equity owners’ only income were that allocated to such equity owners by Holdings and (ii) the highest statutory rate applicable maturity date to different categories of income (which shall a date no earlier than the date 20 months after the Amendment Effective Datee.g. tax-exempt income or long-term capital gains); and (cj) the Borrower and its Subsidiaries may pay Management Fees pursuant to the Management Agreement in an amount not to exceed $600,000 in any Subsidiary fiscal year of the Borrower may pay dividends or make other distributions to the Borrower or any to other Subsidiary of the Borrower that is a Loan PartyBorrower.

Restricted Payments; Management Fees. Make Each Loan Party will not, and will not permit any of its Subsidiaries to, make any Restricted Payments in any fiscal year or pay any management fees or similar fees to any Person in any fiscal yearPayment; provided thatprovided, that so long as it is permitted by law: (a) So long as Parent is a “pass-through” tax entity for United States federal income tax purposes, and after first providing such supporting documentation as Agent may request, Parent may declare and pay distributions in the amount of the Pass-Through Tax Liabilities. (i) Each Subsidiary of a Loan Party may make Restricted Payments to any Loan Party and (ii) each Subsidiary of a Loan Party that is not a Loan Party may make Restricted Payments to another Subsidiary that is not a Loan Party. (c) Parent may make other Restricted Payments; provided, that, each of the Payment Conditions shall be satisfied. (d) Parent may pay management fees to MSD Capital LP and its Affiliates in an aggregate amount not to exceed $250,000 per calendar year, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom. (e) The Loan Parties may consummate repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made or deemed to be directly made in connection with any exercise, vesting, settlement or indirectly caused exchange, as a result thereofapplicable, the Borrower may pay management fees to Holdings of stock options, warrants, restricted stock, restricted stock units or other similar rights in an aggregate amount not to exceed $1,500,000 in 5,000,000 during any fiscal year; provided that (i) calendar year and $15,000,000 during the applicable management agreement or similar documentation between Holdings and term of this Agreement, provided, that, each of the Borrower in respect of such fees Payment Conditions shall be in form and substance reasonably acceptable to the Required Lenders and (ii) all such fees and other reimbursement or payment obligations of the Borrower to Holdings pursuant to any such agreement shall be subordinated to the Subdebt Obligations on terms and conditions and pursuant to documentation in each case in form and substance reasonably acceptable to the Required Lenders;satisfied. (bf) so So long as no Default or Event of Default shall have occurred and be continuing or would be directly or indirectly caused as a result thereoftherefrom, the Borrower Parent may make other Restricted Payments to with proceeds received by Parent from the sale of Equity Interests of Parent the other than proceeds of which shall be used Specified Equity Contributions; provided that any such Restricted Payments are made no later than 30 days after such proceeds have been received by the Parent (i) to make cash payments of interest on the Indebtedness evidenced by the Holdback Note on each applicable interest payment date in accordance with the terms of the Holdback Note and the subordination terms applicable thereto, (ii) to make cash payments of principal of the Indebtedness evidenced by the Holdback Note on (and not prior to) the applicable maturity date (which shall a date no earlier than the date 20 months after the Amendment Effective Date); and (c) any Subsidiary of the Borrower may pay dividends or make other distributions to the Borrower or any to other Subsidiary of the Borrower that is a Loan PartyParent.