Common use of Restricted Payments; Restrictive Agreements Clause in Contracts

Restricted Payments; Restrictive Agreements. 3. Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that: (i) the Borrower may pay the Subject Dividend; provided, however, (A) if the Subject Dividend is not paid on or prior to September 13, 2014, on the date on which the Subject Dividend is paid, prior to making such payment, the Administrative Agent shall have received a bringdown solvency opinion of Xxxxxx, Xxxxxx & Co., Inc., addressed to the Administrative Agent, which shall be in form and substance satisfactory to the Administrative Agent and the Required Lenders and (B) after giving pro forma effect to the making of the Subject Dividend, the Net Leverage Ratio, as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered (or, if the Subject Dividend is made prior to the first date after the Closing Date on which such financial statements and certificates are required to be delivered hereunder, as of the last day of the four-fiscal quarter period ending June 30, 2014), shall not exceed 3.08:1.00;[Reserved]; (A) the Subject Entities may declare and make Restricted Payments to the Borrower, and (B) any other Subsidiary that is not a Loan Party may declare and make Restricted Payments ratably to its equity holders, which shall be paid in accordance with the terms of the Management Agreements and the Loan Documents; (iii) for any taxable year in which the Borrower is a Flow-Through Entity, (1) the Borrower may make distributions of cash to the holders of its Equity Interests, on or after the twentieth (20th) Business Day before the final day of a Quarterly Tax Payment Period, in an amount determined as follows: (A) for the first Quarterly Tax Payment Period in such taxable year, 25% of the estimated Permitted Tax Distribution Amount, (B) for the second Quarterly Tax Payment Period in such taxable year, 50% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year, (C) for the third Quarterly Tax Payment Period in such taxable year, 75% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year and (D) for the fourth Quarterly Tax Payment Period in such taxable year, 100% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year; (2) no later than the day prior to the due date for the payment by corporations of income taxes for such taxable year, the Borrower may make an additional tax distribution, in cash, to the extent that the Borrower’s revised estimate of the Permitted Tax Distribution Amount (the “Amended Tax Amount”) so calculated exceeds the cumulative tax distributions previously made by the Borrower in respect of such taxable year; and (3) within 30 days following the date on which the Borrower files a tax return on Form 1065, the Borrower may make an additional tax distribution, in cash, to the extent that the actual Permitted Tax Distribution Amount (the “Final Tax Amount”) exceeds the Amended Tax Amount; provided that, to the extent (I) the Amended Tax Amount is less than the cumulative tax distributions previously made by the Borrower in respect of a taxable year, the difference (the “Credit Amount”) and/or (II) the Final Tax Amount is less than the Amended Tax Amount, the difference (the “Additional Credit Amount”), such respective Credit Amount and Additional Credit Amount shall appropriately reduce (without duplication) the Permitted Tax Distribution Amount in subsequent taxable years; and (y) for any taxable year in which the Borrower is not a Flow-Through Entity but is a member of any consolidated, combined or unitary group for tax purposes, the Borrower may make distributions to the parent of such group to allow the parent to timely pay the taxes of such group to the extent attributable to the taxable income of the Borrower and the Subsidiaries as reasonably determined by the Borrower (each such distribution, a “Permitted Tax Distribution”); (iv) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, after a Qualified Public Offering, the Borrower may make Restricted Payments in an annual amount not to exceed 5.0% of the Net Cash Proceeds of such Qualified Public Offering; (v) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrower may make mandatory redemptions of its Class B Units as and when required by the terms of its Organizational Documents (as in effect on the date hereof) (A) in exchange for the issuance of Equity Interests of the Borrower that do not constitute Disqualified Stock or (B) in an aggregate amount not to exceed the Available Amount during the term of this Agreement; (vi) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments in an aggregate amount that does not exceed the Available Amount as in effect immediately prior to the time of making such Restricted Payment; provided that, in the case of any Restricted Payment under this clause (vi), after giving pro forma effect to the making of such Restricted Payment, the Net Leverage Ratio, as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered would not exceed 3.08:1.00; and (vii) the Borrower may redeem Equity Interestsmake Restricted Payments with (A) other Equity Interests that are not Disqualified Stock or (B) the proceeds of the issuance of such other Equity Interests that are applied to make such redemptionRestricted Payment substantially contemporaneously with such issuance of other Equity Interests.; (viii) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make, during any fiscal year, Restricted Payments in an aggregate amount that does not exceed 10% of the taxable income of the Borrower for such fiscal year; and (ix) the Borrower may make Restricted Payments, so long as (A) no Event of Default has occurred and is continuing or would result therefrom, and (B) after giving pro forma effect to the making of such Restricted Payment, (x) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered, (y) Liquidity is not less than $15,000,000, and (z) after giving pro forma effect to such transaction, the Borrower shall be in compliance with the financial covenants set forth in Section 6.10.

Restricted Payments; Restrictive Agreements. 3. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that: (i) the Borrower may pay the Subject Dividend; provided, however, (A) if the Subject Dividend is not paid on the Closing Date or prior to September 13, 2014within thirty (30) days thereafter, on the date on which the Subject Dividend is paid, prior to making such payment, the Administrative Agent shall have received a bringdown solvency opinion of XxxxxxMxxxxx, Xxxxxx Dxxxxx & Co., Inc., addressed to the Administrative Agent, which shall be in form and substance satisfactory to the Administrative Agent and the Required Lenders and (B) after giving pro forma effect to the making of the Subject Dividend, the Net Leverage Ratio, as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered (or, if the Subject Dividend is made prior to the first date after the Closing Date on which such financial statements and certificates are required to be delivered hereunder, as of the last day of the four-fiscal quarter period ending June 30, 2014), shall not exceed 3.08:1.00;[Reserved]3.08:1.00; (ii) (A) the Subject Entities may declare and make Restricted Payments to the Borrower, and (B) any other Subsidiary that is not a Loan Party may declare and make Restricted Payments ratably to its equity holders, which shall be paid in accordance with the terms of the Management Agreements and the Loan Documents; (iii) for any taxable year in which the Borrower is a Flow-Through Entity, (1) the Borrower may make distributions of cash to the holders of its Equity Interests, on or after the twentieth (20th) Business Day before the final day of a Quarterly Tax Payment Period, in an amount determined as follows: (A) for the first Quarterly Tax Payment Period in such taxable year, 25% of the estimated Permitted Tax Distribution Amount, (B) for the second Quarterly Tax Payment Period in such taxable year, 50% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year, (C) for the third Quarterly Tax Payment Period in such taxable year, 75% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year and (D) for the fourth Quarterly Tax Payment Period in such taxable year, 100% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year; (2) no later than the day prior to the due date for the payment by corporations of income taxes for such taxable year, the Borrower may make an additional tax distribution, in cash, to the extent that the Borrower’s revised estimate of the Permitted Tax Distribution Amount (the “Amended Tax Amount”) so calculated exceeds the cumulative tax distributions previously made by the Borrower in respect of such taxable year; and (3) within 30 days following the date on which the Borrower files a tax return on Form 1065, the Borrower may make an additional tax distribution, in cash, to the extent that the actual Permitted Tax Distribution Amount (the “Final Tax Amount”) exceeds the Amended Tax Amount; provided that, to the extent (I) the Amended Tax Amount is less than the cumulative tax distributions previously made by the Borrower in respect of a taxable year, the difference (the “Credit Amount”) and/or (II) the Final Tax Amount is less than the Amended Tax Amount, the difference (the “Additional Credit Amount”), such respective Credit Amount and Additional Credit Amount shall appropriately reduce (without duplication) the Permitted Tax Distribution Amount in subsequent taxable years; and (y) for any taxable year in which the Borrower is not a Flow-Through Entity but is a member of any consolidated, combined or unitary group for tax purposes, the Borrower may make distributions to the parent of such group to allow the parent to timely pay the taxes of such group to the extent attributable to the taxable income of the Borrower and the Subsidiaries as reasonably determined by the Borrower (each such distribution, a “Permitted Tax Distribution”); (iv) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, after a Qualified Public Offering, the Borrower may make Restricted Payments in an annual amount not to exceed 5.0% of the Net Cash Proceeds of such Qualified Public Offering; (v) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrower may make mandatory redemptions of its Class B Units as and when required by the terms of its Organizational Documents (as in effect on the date hereof) (A) in exchange for the issuance of Equity Interests of the Borrower that do not constitute Disqualified Stock or (B) in an aggregate amount not to exceed the Available Amount during the term of this Agreement; (vi) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments in an aggregate amount that does not exceed the Available Amount as in effect immediately prior to the time of making such Restricted Payment; provided that, in the case of any Restricted Payment under this clause (vi), after giving pro forma effect to the making of such Restricted Payment, the Net Leverage Ratio, as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered would not exceed 3.08:1.00; and (vii) the Borrower may redeem Equity Interestsmake Restricted Payments Interests with (A) other Equity Interests that are not Disqualified Stock or (B) the proceeds of the issuance of such other Equity Interests that are applied to make such redemptionRestricted Payment redemption substantially contemporaneously with such issuance of other Equity Interests.; (viiib) so long as no Event of Default has occurred and is continuing Enter into, incur or would result therefrompermit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the Borrower may make, during any fiscal year, Restricted Payments in an aggregate amount that does not exceed 10% of the taxable income ability of the Borrower for such fiscal year; and or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, (ixii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower may make Restricted Payments, so long as or any Subsidiary or to Guarantee Indebtedness of the Borrower or any Subsidiary or (iii) the ability of any Fund to pay Management Fees or any Subsidiary to direct payment of the Management Fees to the Borrower; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) clauses (i) and (ii) of the foregoing shall not apply to restrictions and conditions imposed under the terms of the Revolving Credit Agreement as in effect on the date hereof, (C) clauses (i) and (ii) of the foregoing shall not apply to restrictions or conditions imposed on a Fund GP solely in its capacity as general partner, managing member or equivalent acting for a Fund or as the general partner, managing member or equivalent of a Fund GP, in respect of Indebtedness of such Fund; provided no Event such restriction or condition shall affect the Collateral or the right to receive or pay Management Fees and, in the case of Default has occurred and is continuing clause (i), such restrictions or would result therefromconditions apply only to the property or assets securing such Indebtedness (provided that such property or assets shall not include the Management Fees or the right to receive Management Fees), and (BD) after giving pro forma effect to the making of such Restricted Payment, clause (xi) as of the most recently completed period of four consecutive fiscal quarters for which foregoing shall not apply to customary provisions in Management Agreements, leases and other contracts restricting the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered, (y) Liquidity is not less than $15,000,000, and (z) after giving pro forma effect to such transaction, the Borrower shall be in compliance with the financial covenants set forth in Section 6.10assignment thereof.

Restricted Payments; Restrictive Agreements. 3. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that: (i) the Borrower may pay the Subject Dividend; provided, however, (A) if the Subject Dividend is not paid on or prior to September 13, 2014, on the date on which the Subject Dividend is paid, prior to making such payment, the Administrative Agent shall have received a bringdown solvency opinion of XxxxxxMxxxxx, Xxxxxx Dxxxxx & Co., Inc., addressed to the Administrative Agent, which shall be in form and substance satisfactory to the Administrative Agent and the Required Lenders and (B) after giving pro forma effect to the making of the Subject Dividend, the Net Leverage Ratio, as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered (or, if the Subject Dividend is made prior to the first date after the Closing Date on which such financial statements and certificates are required to be delivered hereunder, as of the last day of the four-fiscal quarter period ending June 30, 2014), shall not exceed 3.08:1.00;[Reserved]3.08:1.00; (ii) (A) the Subject Entities may declare and make Restricted Payments to the Borrower, and (B) any other Subsidiary that is not a Loan Party may declare and make Restricted Payments ratably to its equity holders, which shall be paid in accordance with the terms of the Management Agreements and the Loan Documents; (iii) for any taxable year in which the Borrower is a Flow-Through Entity, (1) the Borrower may make distributions of cash to the holders of its Equity Interests, on or after the twentieth (20th) Business Day before the final day of a Quarterly Tax Payment Period, in an amount determined as follows: (A) for the first Quarterly Tax Payment Period in such taxable year, 25% of the estimated Permitted Tax Distribution Amount, (B) for the second Quarterly Tax Payment Period in such taxable year, 50% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year, (C) for the third Quarterly Tax Payment Period in such taxable year, 75% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year and (D) for the fourth Quarterly Tax Payment Period in such taxable year, 100% of the estimated Permitted Tax Distribution Amount, less the prior tax distributions for such taxable year; (2) no later than the day prior to the due date for the payment by corporations of income taxes for such taxable year, the Borrower may make an additional tax distribution, in cash, to the extent that the Borrower’s revised estimate of the Permitted Tax Distribution Amount (the “Amended Tax Amount”) so calculated exceeds the cumulative tax distributions previously made by the Borrower in respect of such taxable year; and (3) within 30 days following the date on which the Borrower files a tax return on Form 1065, the Borrower may make an additional tax distribution, in cash, to the extent that the actual Permitted Tax Distribution Amount (the “Final Tax Amount”) exceeds the Amended Tax Amount; provided that, to the extent (I) the Amended Tax Amount is less than the cumulative tax distributions previously made by the Borrower in respect of a taxable year, the difference (the “Credit Amount”) and/or (II) the Final Tax Amount is less than the Amended Tax Amount, the difference (the “Additional Credit Amount”), such respective Credit Amount and Additional Credit Amount shall appropriately reduce (without duplication) the Permitted Tax Distribution Amount in subsequent taxable years; and (y) for any taxable year in which the Borrower is not a Flow-Through Entity but is a member of any consolidated, combined or unitary group for tax purposes, the Borrower may make distributions to the parent of such group to allow the parent to timely pay the taxes of such group to the extent attributable to the taxable income of the Borrower and the Subsidiaries as reasonably determined by the Borrower (each such distribution, a “Permitted Tax Distribution”); (iv) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, after a Qualified Public Offering, the Borrower may make Restricted Payments in an annual amount not to exceed 5.0% of the Net Cash Proceeds of such Qualified Public Offering; (v) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrower may make mandatory redemptions of its Class B Units as and when required by the terms of its Organizational Documents (as in effect on the date hereof) (A) in exchange for the issuance of Equity Interests of the Borrower that do not constitute Disqualified Stock or (B) in an aggregate amount not to exceed the Available Amount during the term of this Agreement; (vi) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments in an aggregate amount that does not exceed the Available Amount as in effect immediately prior to the time of making such Restricted Payment; provided that, in the case of any Restricted Payment under this clause (vi), after giving pro forma effect to the making of such Restricted Payment, the Net Leverage Ratio, as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered would not exceed 3.08:1.00; and (vii) the Borrower may redeem Equity Interestsmake Restricted Payments Interests with (A) other Equity Interests that are not Disqualified Stock or (B) the proceeds of the issuance of such other Equity Interests that are applied to make such redemptionRestricted Payment redemption substantially contemporaneously with such issuance of other Equity Interests.; (viiib) so long as no Event of Default has occurred and is continuing Enter into, incur or would result therefrompermit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the Borrower may make, during any fiscal year, Restricted Payments in an aggregate amount that does not exceed 10% of the taxable income ability of the Borrower for such fiscal year; and or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, (ixii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower may make Restricted Payments, so long as or any Subsidiary or to Guarantee Indebtedness of the Borrower or any Subsidiary or (iii) the ability of any Fund to pay Management Fees or any Subsidiary to direct payment of the Management Fees to the Borrower; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) clauses (i) and (ii) of the foregoing shall not apply to restrictions and conditions imposed under the terms of the Term Loan Credit Agreement as in effect on the date hereof, (C) clauses (i) and (ii) of the foregoing shall not apply to restrictions or conditions imposed on a Fund GP solely in its capacity as general partner, managing member or equivalent acting for a Fund or as the general partner, managing member or equivalent of a Fund GP, in respect of Indebtedness of such Fund; provided no Event such restriction or condition shall affect the Collateral or the right to receive or pay Management Fees and, in the case of Default has occurred and is continuing clause (i), such restrictions or would result therefromconditions apply only to the property or assets securing such Indebtedness (provided that such property or assets shall not include the Management Fees or the right to receive Management Fees), and (BD) after giving pro forma effect to the making of such Restricted Payment, clause (xi) as of the most recently completed period of four consecutive fiscal quarters for which foregoing shall not apply to customary provisions in Management Agreements, leases and other contracts restricting the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and Section 5.04(c) have been delivered, (y) Liquidity is not less than $15,000,000, and (z) after giving pro forma effect to such transaction, the Borrower shall be in compliance with the financial covenants set forth in Section 6.10assignment thereof.