Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person; (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date; (d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or (e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and (f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 3 contracts
Samples: Credit Agreement (ESCO Corp), Credit Agreement (ESCO Corp), Credit Agreement (ESCO Corp)
Restricted Payments. Declare (a) The Borrower will not, and ------------------- will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (i) the Borrower may declare and pay dividends with respect to its capital stock not to exceed $10,000,000 in the aggregate in any fiscal year, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or incur other benefit plans for management or employees of the Borrower and its Subsidiaries, (iv) Borrower or any obligation (contingent or otherwise) to do so, except that:
(a) each Restricted Subsidiary may make Restricted Payments in respect of Employment Arrangements (including but not limited to Persons that own purchase of Equity Interests in such SubsidiaryBorrower), ratably according to their respective holdings of the type of Equity Interest in respect of which such (v) Borrower or any Restricted Subsidiary may make a Restricted Payment is being made;
pursuant to a Put Arrangement, (bvi) each Loan Party and each Borrower or any Restricted Subsidiary may declare and make dividend payments dividends or other distributions payable solely in of common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests options or any warrant, right or option rights to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of common Equity Interests, as in effect on the Closing Date;
and (dvii) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease or any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower Restricted Subsidiary may make other Restricted Payments so long as (iother than cash dividends on its common Stock) no Default exists provided that immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted PaymentPayments under this clause (vii), the aggregate amount of Restricted Payments made under this clause (vii) after September 30, 2000 does not exceed the sum of (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and $60,000,000 plus (B) 50% of Borrower's consolidated quarterly net income (if positive) for each calendar quarter ended during the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(aapplicable Calculation Period, plus (C) (andall interest and principal payments, dividends, distributions and other proceeds received by Borrower or any Restricted Subsidiary in the case respect of any Restricted Payment Investment during the applicable Calculation Period, plus (D) all Restricted Investments in excess of $10,000,000any Unrestricted Subsidiary which is redesignated as a Restricted Subsidiary. As used above, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate applicable "Calculation Period" with respect thereto)to a Restricted Payment means the period (taken as one accounting period) from and after June 30, 2000 to and including the last day of the fiscal quarter ended immediately preceding the date of such Restricted Payment.
Appears in 3 contracts
Samples: Credit Agreement (Pure Resources Inc), Credit Agreement (Pure Resources Inc), Credit Agreement (Pure Resources Inc)
Restricted Payments. Declare The Borrower will not, nor will it permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except for, so long as no Default exists at the time of making such Restricted Payment or incur any obligation (contingent or otherwise) to do so, except thatwould result therefrom:
(a) each Subsidiary may payments of cash dividends to the Holding Company that will be used and applied directly by the Holding Company solely to make Restricted Payments payments of cash interest when due on the Holding Company Convertible Notes that remain outstanding prior to Persons that own Equity Interests in or at the final maturity date of such Subsidiarynotes and limited to the amount of such interest payment, ratably according but only if the Holding Company is otherwise unable to their respective holdings of the type of Equity Interest in respect of which make such Restricted Payment is being madeinterest payments;
(b) each Loan Party payments of cash dividends (or pay management fees and/or make royalty fee payments) to the Holding Company that will be used and each Subsidiary may declare applied directly by the Holding Company solely to pay general and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect administrative expenses of the 2,598 shares of Holding Company and its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements Subsidiaries (Restated) between other than the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(dits Subsidiaries) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 15,000,000 for any period of twelve consecutive full calendar months;
(c) payments of cash dividends to the Holding Company that will be used and applied directly by the Holding Company solely to pay: (i) unfunded obligations in respect of the Investments by the Holding Company or any of its Subsidiaries (other than the Borrower and its Subsidiaries) that are in effect on the Fifth Restatement Effective Date and identified in Schedule 7.08(c) (specifying the amount and due date (if any) of each such obligation) when such obligations are due and payable or called pursuant to the respective terms of such Investments, provided that the aggregate amount of dividends under this sub-clause (i) shall not exceed $100,000,000 in the aggregate from and after the Fifth Restatement Effective Date; (ii) general and administrative expenses of the Subsidiary or Subsidiaries of the Holding Company (other than the Borrower or any of its Subsidiaries) that holds such Investments identified in Schedule 7.08(c) in an aggregate amount not exceeding $3,000,000 for any fiscal year; (iii) Capital Expenditures of the Holding Company and its Subsidiaries (other than the Borrower and its Subsidiaries) in an aggregate amount not exceeding $10,000,000 from and after the Fifth Restatement Effective Date; (iv) amounts payable in respect of the Holding Company’s lease for its corporate headquarters; (v) principal and interest payments in respect of Indebtedness of the Holding Company incurred to refinance Indebtedness outstanding on the First Amendment Effective Date (as defined in the Existing Credit Agreement) (and any subsequent refinancing thereof), provided that (x) at the time of such Restricted Payment no Default shall have occurred and be continuing or would result therefrom and (y) the Borrower shall be in compliance with the covenants under Section 7.11 calculated on a pro forma basis as if such Restricted Payment had been made on the last day of the most recent period of four consecutive fiscal quarters of the Borrower; and (vi) other ordinary expenses of the Holding Company in respect of the normal operations of the Holding Company in an aggregate amount not exceeding $2,000,000 for any fiscal year, which dividends (in each case, in the case of sub-clauses (i) through (iv) above) may be paid from time to time but only in an amount not exceeding the amount of such obligations, expenses or other amounts permitted under this clause (c), as applicable, and at the time the same are due and payable;
(d) payments of cash dividends to the Holding Company that will be used and applied directly by the Holding Company solely to pay federal, state, local and foreign income taxes of the Holding Company, to the extent such income taxes (i) are attributable to (x) the income of the Borrower and its Subsidiaries and/or attributable to the income of Unrestricted Subsidiaries (but (in the case of such income of Unrestricted Subsidiaries) only to the extent that, prior to making such dividends, the Borrower and its Subsidiaries shall have actually received cash amounts from any Unrestricted Subsidiaries that are designated for purpose of making such dividends under this clause (d) in respect of such income) or (y) the income of Holding Company but not any of its Subsidiaries and (ii) with respect to clause (x) above, do not exceed for any fiscal year the amount that the Borrower and its Subsidiaries or, as applicable, its Unrestricted Subsidiaries, would be required to pay in respect of such income taxes for such fiscal year were the Borrower, its Subsidiaries and its Unrestricted Subsidiaries, as the case may be, to pay such income taxes separately from the Holding Company, which dividends may be paid from time to time but only in an amount not exceeding the amount of such income taxes permitted under this clause (d), as applicable, and at the time the same are due and payable;
(e) [Reserved];
(f) the dividends and/or distributions contemplated by Section 7.01(j);
(g) [Reserved];
(h) payments of dividends to the Holding Company, together with the amount of any purchase, redemption, retirement, acquisition for value, defeasance, voluntary payment or prepayment or refinancing permitted under Section 7.07(n)(ii), in an aggregate amount not to exceed $100,000,000 in any fiscal year of the Borrower, Borrower (it being understood and agreed that the Borrower shall be permitted to carry forward $50,000,000 of unused amounts to the next succeeding fiscal year); provided that within five Business Days at the time of the declaration and making of each such dividend, the Borrower’s First Lien Indebtedness Ratio shall not exceed (i) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (ii) 3.25 to 1.00 thereafter, calculated on a pro forma basis as if such dividend had been declared and made on the last day of the most recent period of four consecutive fiscal quarters of the Borrower;
(i) the consummation of the Notes Transfer;
(j) payments of cash dividends to the Holding Company, together with the amount of any purchase, redemption, retirement, acquisition for value, defeasance, voluntary payment or prepayment or refinancing permitted under Section 7.07(n)(iii), in an aggregate amount not to exceed $300,000,000; provided that at the time of the declaration and making of each such dividend, (x) no Default shall have occurred and be continuing or would result therefrom and (y) the Borrower’s First Lien Indebtedness Ratio shall not exceed (i) 3.50 to 1.00 at any time during the period beginning on the Fourth Amendment Effective Date and ending on December 31, 2014 and (ii) 3.25 to 1.00 thereafter, calculated on a pro forma basis as if such dividend had been declared and made on the last day of the most recent period of four consecutive fiscal quarters of the Borrower;
(k) [Reserved]
(l) payments of cash dividends or loans to the Holding Company or the Borrower receives a payment directly or indirectly from any Unrestricted Subsidiaries;
(m) payments of cash dividends to the Holding Company the proceeds of which are applied to make payments in cash from connection with the ESOP as a payment of principalrepurchase, interest redemption or other charges on Indebtedness repayment of the ESOP to the Borroweroutstanding Holding Company Convertible Notes; and
(fn) Longevity Payments in an aggregate amount not to exceed $15,000,000. Nothing herein shall be deemed to prohibit the payment of any dividends or distributions by any Wholly Owned Subsidiary of the Borrower may make to the Borrower or any other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted PaymentWholly Owned Subsidiary; provided that, (A) notwithstanding anything in the Loan Parties would Documents to the contrary, no Designated SBG Subsidiary shall be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (andto make any dividend or other distributions, in cash or property (other than in its additional ownership interests), to the case Holding Company or any Subsidiary of the Holding Company that directly owns the ownership interests of such Designated SBG Subsidiary, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Payment in excess of $10,000,000such ownership interests or any option, the Borrower shall have delivered warrant or other right to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)acquire any such ownership interests.
Appears in 3 contracts
Samples: Incremental Loan Amendment (Sinclair Broadcast Group Inc), Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)
Restricted Payments. Declare The Parent will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, make any Restricted Payment, or incur Payment at any obligation (contingent or otherwise) to do sotime, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary Parent may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment Restricted Payment in cash from the ESOP as a payment of principal(including, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other without limitation, Restricted Payments to Affiliates) so long as (i) no Default exists immediately prior on the date of such Restricted Payment and after giving effect thereto no Default shall have occurred and be continuing, and (ii) upon either (x) immediately after giving effect thereto the aggregate amount of cash and Cash Equivalents held by the Parent and its Restricted Subsidiaries (excluding cash and Cash Equivalents securing reimbursement obligations in respect of Secured LOCs) plus the aggregate amount of unused Revolving Credit Commitments is at least $300,000,000 (provided that the aggregate amount of Restricted Payments made as permitted by this clause (x) after the date hereof shall not exceed $600,000,000) or (y) the aggregate amount of such Restricted Payment together with all other Restricted Payments (excluding Restricted Payments made as permitted by the immediately preceding clause (x)) made after the date hereof shall not exceed 25% of cumulative Excess Cash Flow for the period commencing on January 1, 2010 through and including the last day of the fiscal year most recently ended prior to the date of such Restricted Payment. Nothing herein shall be deemed to prohibit the payment of any dividend or distribution or the making of any payment in cash on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any equity interest in any Subsidiary of the Company so long as either (Ai) the Loan Parties would be in compliance with portion of such dividends, distributions or other payments that are paid to the financial covenants set forth in Section 8.11 on a Pro Forma Basis Company and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 its Restricted Subsidiaries are not less than the maximum then portion thereof that such Persons would be entitled to received if such dividends, distributions and other payments were declared and paid ratably to the shareholders, partners and other equityholders of such Subsidiary or (ii) such payment is being made in respect of the purchase by such Restricted Subsidiary from one or more of its equityholders of minority interests held by such equityholders in such Restricted Subsidiary, so long as such purchase is an Investment permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto8.05(a).
Appears in 3 contracts
Samples: Lease Agreement (Foster Wheeler Ag), Guaranty and Suretyship Agreement (Foster Wheeler Ag), Credit Agreement (Foster Wheeler Ag)
Restricted Payments. Declare The Borrower will not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists Completion shall have occurred, (ii) immediately prior and after making such payment, the Debt Service Coverage Ratio for any Historical Test Period or Future Test Period shall not be less than 1.8:1.00, (iii) the Debt Service Reserve Account is fully funded, (iv) the Borrower shall be in compliance with all financial covenants on a proforma basis after giving effect thereto to such Restricted Payment or expenditure (calculated on a proforma basis with respect to the Historical Test Period most recently ended and Future Test Period from such date), and (v) no Default or Event of Default exist or shall occur after giving effect to such Restricted Payment;
(b) the Borrower may make Restricted Payments relating to exploration expenditures at the Mimbres and Coyote Springs sites, so long as (i) Completion shall have occurred, (ii) upon immediately after making such payment, the Debt Service Coverage Ratio for any Historical Test Period or Future Test Period shall not be less than 1.3:1.00, (iii) the Debt Service Reserve Account is fully funded, (iv) the Borrower shall be in compliance with all financial covenants on a proforma basis after giving effect to such Restricted Payment or expenditure (calculated on a proforma basis with respect to the Historical Test Period most recently ended and Future Test Period from such date), (v) no Default or Event of Default exist or shall occur after giving effect to such Restricted Payment, (Avi) the Loan Parties would be in compliance with maximum amount of all such expenditures made pursuant to this clause (b) relating to the financial covenants set forth in Section 8.11 on a Pro Forma Basis Mimbres site shall not exceed $2,750,000, and (Bvii) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than maximum amount of all such expenditures relating to the maximum then permitted under Section 8.11(aCoyote Springs site made pursuant to this clause (b) (and, shall not exceed $2,100,000 in the case of any Restricted Payment in excess of $10,000,000, aggregate; and
(c) the Borrower shall have delivered to may make Restricted Payments constituting “Liquidity Incentive Payments” in connection with and as defined under the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)$23 million equity financing documentation as such documentation is in effect on the date hereof, provided that such amounts do not exceed $2,760,000 in the aggregate.
Appears in 3 contracts
Samples: Credit Agreement (Nord Resources Corp), Credit Agreement (Nord Resources Corp), Credit Agreement (Nord Resources Corp)
Restricted Payments. Declare or make, directly or indirectly, any No Obligor Party shall make payments which are Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except that:
(a) each Subsidiary The Obligor Parties may make payments and other distributions as expressly permitted under Section 5.13 and Article III of the Depositary Agreement; provided that, solely with respect to any Restricted Payment to be made on the Term Conversion Date pursuant to the first proviso of Section 3.10(b) of the Depositary Agreement and Sections 3.8(c)(i) and 3.9(b)(iv) of the Depositary Agreement, no Revolving Loans are outstanding as of the date of such Restricted Payment before and after giving effect to such Restricted Payment.
(b) The Borrower may reimburse Drawstop Equity Contributions pursuant to Section 4.03(d); provided that the aggregate remaining amount of all stated amounts, deposited amounts and amounts secured thereby, as applicable, of any Equity Credit Support to whom such reimbursement is intended to be made shall be equal to not less than the “Unfunded Commitment” (as defined in the Equity Contribution Agreement (after giving pro forma effect to the reimbursement of such Drawstop Equity Contribution)).
(c) The Borrower may reimburse the Expansion Equity Contributions pursuant to Section 4.03(e); provided that the aggregate remaining amount of all stated amounts, deposited amounts and amounts secured thereby, as applicable, of any Equity Credit Support to whom such reimbursement is intended to be made shall be equal to not less than the “Unfunded Commitment” (as defined in the Equity Contribution Agreement (after giving pro forma effect to the reimbursement of such Expansion Equity Contribution)).
(d) Restricted Payments may be made with the proceeds of amounts on deposit in or credited to any Excluded Commodity Account, in an aggregate amount not to exceed at any time (i) the amount of Equity Commodity Contributions made prior to such time less (ii) any amounts that have been previously transferred as a Restricted Payment pursuant to this clause (d).
(e) Any Loan Party may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according any other Loan Party.
(f) Any Obligor Party may make payments to their respective holdings any Affiliate of the type Obligor Parties under the Management Services Agreement (including the Management Fee), any Permitted O&M Agreement, any Permitted Energy Management Agreement or any other Project Contract entered into in accordance with this Agreement.
(g) On or after the first Quarterly Payment Date following the Term Conversion Date, so long as the Distribution Conditions are satisfied as of Equity Interest in respect the date of which any such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect theretoPayment, the Borrower may purchasemake Restricted Payments to Sponsor, redeemHoldings or its designee with amounts on deposit in, retireor credited to, defease any the Distribution Suspense Account in accordance with Section 3.10 of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; orDepositary Agreement.
(eh) Prior to the Term Conversion Date and so long as no Event of Default has occurred and is continuing, the Borrower may pay quarterly cash dividends to make the ESOP with respect to the Borrower’s Class C Preferred Stock following withdrawals and additional contributions transfers from the Borrower to Construction Account: (i) for Permitted Tax Distributions and (ii) for general and administrative costs of the ESOP Projects and the Loan Parties directly incurred by Holdings and Sponsor, and other corporate overhead expenses in an aggregate amount not to exceed $30,000,000 for 250,000 in any fiscal year of the Borrower, provided that within five Business Days of making such payment in each case Borrower has certified that the Borrower receives a payment Loan Parties have sufficient funds (taking into account the available Equity Commitment, amounts on deposit in cash from the ESOP as a Construction Account and the Local Accounts (other than for payment of principalO&M Costs), interest or other charges on Indebtedness of and remaining availability under the ESOP Construction Facility) to the Borrower; andachieve Term Conversion.
(fi) Pursuant to and in accordance with Section 2.11(b)(iv), the Borrower may make other Restricted Payments so long as distribute the LeConte Target Disposition Prepayment Amount to Holdings, and Holdings may distribute such amount to LeConte.
(ij) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect The Borrower may distribute payments to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered made to LeConte pursuant to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)SP-15 Payment Assignment Agreement and any payments made by Exelon under the Exelon Confirmation listed in clause (a) of the definition thereof to Holdings, and Holdings may distribute such amount to LeConte.
Appears in 3 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiaryadditional shares of its common stock, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in common pay dividends ratably with respect to their Equity Interests of such Person;
Interests, (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
its Subsidiaries and (d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease other Restricted Payments not exceeding (i) $20,000,000 during any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the BorrowerFiscal Year, provided that within five Business Days (A) such Restricted Payments shall not exceed $6,000,000 in the aggregate during the first three Fiscal Quarters of making any Fiscal Year (or such payment the Borrower receives a payment greater amount as may be approved in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness writing by all of the ESOP to Lenders), (B) as of the Borrower; and
end of such Fiscal Year and at the time of the making of any Restricted Payment during such Fiscal Year (fprovided such Restricted Payment together with all prior Restricted Payments made during such Fiscal Year exceeds $6,000,000 in the aggregate) the Borrower may make other Restricted Payments so long as Leverage Ratio (i) no Default exists immediately prior and on a pro forma basis after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be Payment when determined in compliance connection with the financial covenants set forth in Section 8.11 on making of a Pro Forma Basis Restricted Payment) is less than or equal to 2.0 to 1.0, and (BC) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 no less than the maximum then permitted under Section 8.11(a) (and, in the case of five Business Days prior to making any Restricted Payment in excess of which when added to all prior Restricted Payments made during such Fiscal Year exceeds $10,000,0006,000,000, the Borrower shall have delivered delivers its pro forma computations acceptable to the Administrative Agent a Pro Forma Compliance Certificate to demonstrate its compliance with respect theretothe immediately preceding clause (B), and (ii) $6,000,000 in any Fiscal Year provided that as the end of such Fiscal Year the Leverage Ratio is greater than 2.0 to 1.0.
Appears in 3 contracts
Samples: Credit Agreement (Spartan Motors Inc), Credit Agreement (Spartan Motors Inc), Credit Agreement (Spartan Motors Inc)
Restricted Payments. Declare (a) The Borrower will not make or make, directly or indirectly, pay any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, ; except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchasemay, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, so long as in effect on the Closing Date;
(d) no Default exists immediately prior or Event of Default shall occur both before and after giving effect thereto, the Borrower may purchase, redeem, retire, defease make (i) Restricted Payments (other than Restricted Debt Payments) during any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP fiscal quarter in an aggregate amount not to exceed $30,000,000 for any fiscal year the Borrower’s Available Cash as of the Borrowerend of the immediately preceding fiscal quarter; provided that, provided that within five Business Days of making such payment the Borrower receives a payment and its Subsidiaries shall be in cash from compliance (after giving pro forma effect to the ESOP as a payment making of principal, interest or other charges on Indebtedness such Restricted Payment) with all of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto covenants contained in this Agreement, including, without limitation, Sections 6.10 through 6.12 and (ii) upon Restricted Debt Payments; provided that (x) the Borrower has cash, Liquid Investments and availability under this Agreement in an amount equal to not less than twenty percent (20%) of the aggregate Commitments and (y) after giving effect to such Restricted Debt Payment on a pro forma basis, the Senior Leverage Ratio shall not be greater than 3.25 to 1.00.
(b) Any Holdco Entity that is not a Subsidiary of the Borrower will not make or pay any Restricted Payment; except that (i) such Holdco Entity may make any payment on account of any net profits interest, net working capital adjustments or earn-out payments in connection with an Investment by such Holdco Entity pursuant to Section 6.06 and (ii) such Holdco Entity may make Restricted Payments (other than any distributions of Equity Interests or payments-in-kind) at any time in an aggregate amount not to exceed such Holdco Entity’s Available Cash at the time of such Restricted Payment; provided that, (x) no Default or Event of Default shall occur both before and after giving effect to such Restricted Payment, and (Ay) the Loan Parties would Borrower, its Subsidiaries and the Holdco Entities shall be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered after giving pro forma effect to the Administrative Agent a Pro Forma Compliance Certificate making of such Restricted Payment) with respect thereto)all of the covenants contained in this Agreement, including, without limitation, Sections 6.10 through 6.12.
Appears in 3 contracts
Samples: Credit Agreement (Holly Energy Partners Lp), Credit Agreement (Holly Energy Partners Lp), Credit Agreement (Holly Energy Partners Lp)
Restricted Payments. Declare The Borrower shall not, and shall not permit any of its Subsidiaries to, declare or make, directly or indirectly, make any Restricted Payment; provided, however, that the Borrower and its Subsidiaries may declare and make the following Restricted Payments so long as no Default or incur any obligation (contingent or otherwise) to do so, except thatEvent of Default would result therefrom:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease declare or make other payments in respect cash distributions to its shareholders (together with cash distributions of the 2,598 shares of Heritage OP and the Xxxxxxx OP to its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to limited partners other than the Borrower’s Class C Preferred Stock and additional contributions from ) during any period of four consecutive fiscal quarters ending during the Borrower to the ESOP term of this Agreement in an aggregate amount not to exceed $30,000,000 for any fiscal year the greater of (i) 95% of Funds From Operations of the Borrower, provided that within five Business Days of making Combined Group for such payment period or (ii) the amount required to be distributed for the Borrower receives a payment to remain in compliance with Section 7.13.; provided, however, that in no event shall such cash distributions made during any period of two consecutive fiscal quarters exceed in an aggregate amount 100% of Funds From Operations of the Combined Group for such period;
(b) the Borrower may make cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the ESOP as a extent necessary to avoid payment of principal, interest or other charges taxes on Indebtedness such asset sales imposed under Sections 857(b)(3) and 4981 of the ESOP Internal Revenue Code;
(c) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(d) the Xxxxxxx OP may repurchase, redeem or otherwise acquire Equity Interests issued by the Xxxxxxx OP;
(e) Subsidiaries may pay Restricted Payments to the BorrowerBorrower or any other Subsidiary; and
(f) the Borrower may make other cash payments to repurchase outstanding shares of any of its Equity Interests. If an Event of Default shall exist, the Borrower shall not, and shall not permit any Subsidiary to, make any Restricted Payments so long as to any Person other than (i) no Default exists immediately prior and after giving effect thereto to the Borrower or any Subsidiary and (ii) upon giving effect cash distributions by the Borrower to such Restricted Payment, (A) its shareholders during any fiscal year in an aggregate amount not to exceed the Loan Parties would be minimum amount necessary for the Borrower to remain in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)7.13.
Appears in 3 contracts
Samples: Credit Agreement (Heritage Property Investment Trust Inc), Credit Agreement (Heritage Property Investment Trust Inc), Term Loan Agreement (Heritage Property Investment Trust Inc)
Restricted Payments. Declare Borrower will not, nor will Borrower permit any other Credit Party to, declare, pay or make, directly or indirectlyincur any liability to declare, pay or make, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
, (ai) each Subsidiary Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of such Equity Interests (other than Disqualified Capital Stock), (ii) Restricted Subsidiaries may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according with respect to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect (iii) Borrower may make Permitted Tax Distributions; provided that if the aggregate Permitted Tax Distributions for any tax year exceed the actual annual tax amount for such year (based on the Closing Date;
(d) no Default exists immediately prior and after giving effect theretocalculation in the definition of Permitted Tax Distribution), the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions such excess shall be deducted from the Borrower next distribution(s) to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borroweroccur after such U.S. federal income tax filing, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
and (fiv) the Borrower may make other Restricted Payments with respect to its Equity Interests so long as (iA) no Default or Event of Default or Borrowing Base Deficiency then exists immediately prior and or would result therefrom, (B) after giving effect thereto and (ii) upon giving effect to such Restricted PaymentPayment (and any Borrowings incurred in connection therewith), Liquidity is greater than or equal to ten percent (10%) of the Total Commitment in effect at such time, (AC) after giving effect to such payment (and any Borrowings incurred in connection therewith), the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 Consolidated Total Leverage Ratio on a Pro Forma Basis pro forma basis is less than or equal to 3.00 to 1.00 and (BD) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000after giving pro forma effect to such payment, the Distributable Free Cash Flow Amount shall be greater than or equal to $0, and Borrower shall have delivered a certificate certifying as to the satisfaction of the foregoing conditions to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)and executed by an Authorized Officer of Borrower to the Administrative Agent not less than two (2) Business Days (or such shorter time as the Administrative Agent may agree in its sole discretion) prior to the making of such Restricted Payment.
Appears in 2 contracts
Samples: Credit Agreement (Sitio Royalties Corp.), Credit Agreement (Brigham Minerals, Inc.)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payments; except that:
(a) each Subsidiary of the Borrower may make Restricted Payments to Persons any Person that own owns Equity Interests 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) each Loan Party Holdings and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;; and
(c) Holdings and each Subsidiary may purchase or cause to be purchased (and the Borrower may make Restricted Payments to Holdings in amounts to enable it to purchase, redeem, retire, defease or make other payments in respect of ) the 2,598 shares of its Equity Interests of Holdings or such Subsidiary from present or former directors, officers, members of management or employees of Holdings or any warrantsuch Subsidiary, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower their estates, spouses, former spouses and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior their heirs upon and after giving effect theretothe death, the Borrower may purchase, redeem, retire, defease any disability or termination of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners employment of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP such Person in an aggregate amount not to exceed $30,000,000 for 5,000,000 in any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; andyear;
(fd) Holdings may make (and the Borrower may make payments to Holdings to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings;
(e) after the Closing Date, Holdings and each Subsidiary may make (and the Borrower may make payments to Holdings to enable it to make) other Restricted Payments so long as in addition to those otherwise permitted by this Section 7.5 in an amount not to exceed $8,000,000 in the aggregate in any fiscal year (or with respect to the period from the Closing Date through the end of the fiscal year ending December 31, 2021, $3,600,000); provided that (i) no Event of Default exists immediately prior and after giving effect thereto shall exist or would result therefrom and (ii) upon after giving effect to such Restricted PaymentPayment (including any incurrence of Indebtedness in connection therewith) on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants in Section 7.7 recomputed as of the last day of the most recent LTM Period;
(f) Holdings may repurchase (and the Borrower may make payments to Holdings to enable it to repurchase) through a “cashless exercise” Equity Interests upon the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings if such Equity Interests netted for such repurchase represent all the exercise price of such warrants, options or other securities convertible into or exchangeable for Equity Interests;
(g) Holdings and each Subsidiary may make (and the Borrower may make payments to Holdings to enable it to make) other Restricted Payments in addition to those otherwise permitted by this Section 7.5; provided that (i) no Event of Default shall exist or would result therefrom and (ii) after giving effect to such Restricted Payment (including any incurrence of Indebtedness in connection therewith) on a Pro Forma Basis, (A) the Loan Parties would shall be in compliance with Section 7.7 recomputed as of the financial covenants set forth in Section 8.11 on a Pro Forma Basis last day of the most recent LTM Period and (B) the Consolidated Total Net Leverage Ratio recomputed as so calculated is at least 0.25 less than of the maximum then permitted under Section 8.11(alast day of the most recent LTM Period does not exceed 2.50:1.00;
(i) (andthe Borrower and its Subsidiaries may make cash distributions to Holdings, in the case amounts necessary to enable Holdings to make Permitted Tax Payments, and (ii) the Borrower and its Subsidiaries may make cash distributions to Holdings, and Holdings may in turn make cash distributions to Parent, in the amounts necessary to enable Parent to make Permitted Tax Payments;
(i) the Borrower may declare and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of any Restricted Payment such Person incurred in excess the ordinary course of $10,000,000business to the extent attributable to the business of the Borrower and its Subsidiaries and (y) to effect the payments contemplated by Section 7.6(f);
(j) so long as no Event of Default shall have occurred and be continuing or would immediately thereafter result therefrom, the Borrower may make distributions to Holdings or any direct or indirect parent of Holdings to pay reasonable directors’ fees, expenses and indemnities owing to directors of Holdings or any direct or indirect parent of Holdings, and to pay customary and reasonable salary and bonuses of any officers or employees of Holdings or any direct or indirect parent of Holdings, in each case, (i) to the extent incurred in the ordinary course of business, (ii) to the extent related to the parent entity’s ownership of the Borrower and its Subsidiaries and (iii) in order to permit such parent entity to make such payments;
(k) if the Investors or their Affiliates shall have delivered made direct or indirect cash equity contributions to the Administrative Agent Borrower to fund any Permitted Acquisitions, and such Permitted Acquisition or expenditure is not made within ten (10) Business Days after receipt of such equity contributions, the Borrower may return such equity contributions to such Investors or their Affiliates either directly or indirectly by distribution to Holdings for redistribution to any Parent Company to effect such return of contributions;
(l) to the extent constituting a Pro Forma Compliance Certificate Restricted Payment, the issuance of Disqualified Equity Interests to the extent not prohibited by Section 7.1; and
(m) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 7.5. To the extent that Holdings or its Subsidiaries are permitted to make any Restricted Payments pursuant to this Section 7.5, the same may be made as a loan or advance to the recipient thereof, and in such case the amount of such loan or advance so made shall reduce the amount of Restricted Payments that may be made by Holdings and its Subsidiaries in respect thereto)thereof.
Appears in 2 contracts
Samples: Credit Agreement (ATN International, Inc.), Credit Agreement (ATN International, Inc.)
Restricted Payments. Declare The Borrower will not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(a) each Subsidiary subject to the delivery by the Borrower to the relevant agents under the Senior Term Loan Agreement or this Agreement, as the case may make be, of reasonable documentary evidence thereof (and without duplication of any Asset Taxes paid pursuant to Section 6.07(c) or Permitted Borrower Expenses pursuant to Section 6.07(d)), (i) any Restricted Payments made for the purpose of allowing the direct and indirect shareholders of Holdings to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such pay Asset Taxes and (ii) any Restricted Payment is being mademade for the purpose of allowing Holdings to pay Permitted Borrower Expenses;
(b) each the payment of dividends in any fiscal year of the Borrower in an aggregate amount not exceeding the lesser of $9,550,000 and the aggregate amount of the portions of Excess Cash Flow for such fiscal year not required to be used to prepay the Senior Loans pursuant to Section 2.04(b)(i) of the Senior Term Loan Party Agreement, the terms of any Indebtedness under any Permitted Refinancing, and each Subsidiary the Loan pursuant Section 2.04(b)(i) (as such aggregate amount may declare be reduced on a Dollar-for-Dollar basis by the amount of prepayments, redemptions or repurchases, and make other payments in respect, of Indebtedness of the Borrower under any Permitted Subordinated Debt, made pursuant to paragraph (d) below), provided that (i) no Default shall have occurred and be continuing or would result therefrom and (ii) no such dividend payments or other distributions payable solely in common Equity Interests payment shall be permitted from any such portion of Excess Cash Flow for any Measurement Period until after the mandatory prepayment required pursuant to Section 2.04(b)(i) of the Senior Term Loan Agreement, the terms of any Indebtedness under any Permitted Refinancing, and Section 2.04(b)(i) hereof, to be made for such PersonMeasurement Period shall have been made;
(c) the payment of dividends or distributions with the proceeds of amounts received by the Borrower may purchasein respect of the Santander Excluded Assets; and
(d) prepayments, redeemredemptions or repurchases of, retire, defease or make and other payments in respect of the 2,598 shares of its Equity Interests or any warrantof, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Paymentunder any Permitted Subordinated Debt, (A) the Loan Parties would be in compliance made with the financial covenants set forth in Section 8.11 amounts otherwise permitted to be used for the payment of dividends pursuant to paragraph (b) above, provided that, upon any such prepayment, redemption or repurchase, the amount otherwise available for the payment of dividends under paragraph (b) above shall be reduced on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Dollar-for-Dollar basis.
Appears in 2 contracts
Samples: Seller Credit Agreement (Petersen Energia Inversora, S.A.), Seller Credit Agreement (Repsol Ypf Sa)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatunless, at the time of and after giving effect to such Restricted Payment, (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment, (ii) the Borrower would, on a Pro Forma Basis, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 8.02(a) and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Holdings or the Borrower and its Subsidiaries after the date hereof pursuant to this paragraph is less than the Available Amount as of the date of such proposed Restricted Payment. The limitations of this Section 8.05 shall not prohibit:
(a) each Subsidiary so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may, or may make Restricted Payments distributions to Persons Holdings so that own Equity Interests in such SubsidiaryHoldings may, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of repurchase its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners owned by employees of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect theretoHoldings, the Borrower may purchaseor the Subsidiaries or make payments to employees of Holdings, redeemthe Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, retire, defease any of its Equity Interests stock appreciation rights or similar equity incentives or equity based incentives pursuant to certain Restated Stock Transfer Restriction Agreements between management incentive plans or in connection with the Borrower and certain owners death or disability of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP such employees in an aggregate amount not to exceed $30,000,000 for 2,500,000 in any fiscal year (excluding any net repurchases or payments over issuances of such Equity Interests in such fiscal year to such employees) (the “Distribution Amount”); provided, that the amount of permitted distributions pursuant to this Section 8.05(a) shall be increased by (A) the unused Distribution Amount for the immediately preceding fiscal year less (B) an amount equal to the unused Distribution Amount carried forward to such preceding fiscal year;
(b) the redemption, retirement or defeasance of any Indebtedness of Holdings or its Subsidiaries with the Net Cash Proceeds from an incurrence of Permitted Refinancing Indebtedness;
(c) the payment of any dividend by a Subsidiary of the BorrowerBorrower to the holders of its Equity Interests on a pro forma basis;
(d) dividends or distributions by the Borrower to Holdings (i) in an amount not to exceed $2,000,000 in any fiscal year to the extent necessary to promptly pay operating and corporate overhead costs and expenses incurred by Holdings in the ordinary course of business (including outside directors and professional fees, expenses and indemnities), (ii) in an amount necessary to pay the tax liabilities of Holdings (excluding any taxes imposed on or measured by Holdings’ overall net income and excluding for the avoidance of doubt, any tax liabilities of any Person holding any Equity Interest in Holdings) directly attributable to (or arising as a result of) the operations of Holdings, the Borrower and the Subsidiaries (provided that within five Business Days any refunds thereof received by Holdings are promptly returned to the Borrower) and (iii) so long as no Event of making such payment Default or Default shall have occurred and be continuing or would result therefrom, at the Borrower receives a payment times due and in cash from an amount necessary to make payments to the ESOP as a payment Permitted Holders to the extent permitted by Section 8.07(e);
(e) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of principal, interest Holdings or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments if and for so long as (i) no Default exists immediately prior the Borrower is a member and after giving effect thereto is not the parent of a group filing a consolidated, combined or unitary tax return, payments to the parent in amounts required for such parent to pay Federal, state and (ii) upon giving effect local income taxes, to the extent such Restricted Paymentincome taxes are attributable to the income of the Borrower and its Subsidiaries; provided, (A) that the Loan Parties amount of such payments in any fiscal year do not exceed the amount that the Borrower and its consolidated Subsidiaries would be required to pay in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis respect of Federal, state and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, local taxes for such fiscal year were the Borrower shall have delivered to the Administrative Agent pay such taxes as a Pro Forma Compliance Certificate with respect thereto)stand-alone taxpayer.
Appears in 2 contracts
Samples: Credit Agreement (MacDermid Group Inc.), Credit Agreement (MacDermid Group Inc.)
Restricted Payments. Declare The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each any Restricted Subsidiary that is a real estate investment trust may make Restricted Payments to Persons that own purchase or redeem its Equity Interests for cash in such Subsidiary, ratably according to their respective holdings of an aggregate amount not exceeding $200,000 after the type of Equity Interest in respect of which such Restricted Payment is being madedate hereof;
(b) each Loan Party and each Subsidiary the Borrower may declare and make dividend payments or other distributions pay dividends with respect to its capital stock payable solely in additional shares of its common Equity Interests stock, and may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans established in the ordinary course of such Personbusiness for directors, management, employees or consultants of the Borrower and its Subsidiaries;
(c) if no Default shall have occurred and be continuing or would result therefrom, the Borrower may purchasedeclare, redeem, retire, defease or pay and make other payments Restricted Payments in respect of an aggregate amount after the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;date hereof not exceeding $50,000,000; and
(d) no Default exists immediately prior the Borrower may declare and make Restricted Payments in cash, subject to the satisfaction of each of the following conditions on the date of each such Restricted Payment and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or:
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior shall have occurred and after giving effect thereto and be continuing;
(ii) upon giving effect to the aggregate amount of Restricted Payments made since the Effective Date (including such Restricted Payment) under this clause (d) shall not exceed an amount equal to the aggregate of 50% of Net Income of the Borrower for the period from and including January 4, 2010 through and including the last day of the fiscal quarter of Borrower most recently ended prior to the date of such Restricted Payment (Atreated for this purposes as a single accounting period) and the aggregate amount of Net Available Proceeds from Equity Issuances not required to prepay Loans pursuant to Section 2.10 hereof and not used to make Permitted Acquisitions; and
(iii) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Senior Secured Leverage Ratio as so calculated is at least 0.25 less than on the maximum then permitted under Section 8.11(a) (and, in the case date of any such Restricted Payment in excess of $10,000,000, the Borrower shall have delivered not exceed 2.50 to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)1.00.
Appears in 2 contracts
Samples: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Restricted Payments. Declare Each Borrower shall not, nor shall it permit any of its Subsidiaries that are Guarantors to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation except the following (contingent or otherwise) in each case subject to do so, except that:compliance with the requirements of Section 5.10):
(a) each Subsidiaries that are Guarantors may declare and pay dividends to any Borrower and any other wholly-owned Subsidiary of any Borrower that is a Guarantor;
(b) TxEx may make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests);
(c) So long as no Default or Event of Default exists or would result therefrom, any Borrower and its Subsidiaries may make Permitted Tax Distributions;
(d) Borrowers may make Restricted Payments to Persons that own Equity Interests in such Subsidiaryredeem, ratably according to their respective holdings of repurchase or cancel the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchaseany former officer, redeem, retire, defease director or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP employee in an aggregate amount not to exceed $30,000,000 for any 100,000 per fiscal year year, so long as no Event of Default exists or would occur as a result of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerthereof; and
(fe) the Borrower Retailco and NuDevco may make other Restricted Payments in cash to TxEx (and TxEx may make such Restricted Payment in cash to Xxxxxxx) (x) prior to the date of the second Credit Extension, so long as no Default or Event of Default has occurred and is continuing or would result therefrom and (y) after the date of the second Credit Extension, so long as (i) no Default exists immediately prior or Event of Default has occurred and after giving effect thereto is continuing or would result therefrom and (ii) upon giving effect the Administrative Agent receives satisfactory evidence no later than five (5) Business Days prior to the date that such Restricted PaymentPayment is to be made that after giving pro forma effect thereto as if such Restricted Payment had been made as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered as required by Section 6.1(a) or Section 6.1(b), (A) the Loan Parties Borrowers would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) Financial Covenant as of the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case end of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)such fiscal quarter.
Appears in 2 contracts
Samples: Credit Agreement (Maxwell W Keith III), Credit Agreement (Via Renewables, Inc.)
Restricted Payments. Declare Company and Borrowers shall not, and shall not permit any of its and their Restricted Subsidiaries to declare, order, pay, make or make, directly or indirectly, set apart any sum for any Restricted Payment; provided that Company and its Restricted Subsidiaries may (i) make Holdings Ordinary Course Payments, or incur so long as Holdings applies the amount of any obligation such Restricted Payment for such purpose; (contingent or otherwiseii) to do so, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests Holdings for purchases of Common Stock of Holdings in such Subsidiary, ratably according to their respective holdings connection with the administration of the type Holdings’ employee benefits program and repurchases of Equity Interest employee shares; (iii) make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments Subordinated Indebtedness was issued, as such indenture or other distributions payable solely agreement may be amended from time to time to the extent not prohibited by Section 8.12(a); provided, in common Equity Interests the case of Company’s intercompany notes to Holdings, such Person;
payments of interest shall be limited to non-cash payments on a basis consistent with past practices; (civ) the Borrower may purchase, make payments of intercompany indebtedness other than payments of Company’s intercompany Indebtedness to Holdings; (v) make Restricted Payments to Holdings to redeem, retirerepay, repurchase or defease or Existing Holdings Senior Notes; and (vi) otherwise make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (ia) no Event of Default exists immediately prior or Unmatured Event of Default has occurred and after giving effect thereto is continuing or would result therefrom and (iib) upon the Total Leverage Ratio is not greater than 4.00 to 1.00 on a Pro Forma Basis for the most recent Test Period both immediately before and immediately after giving effect to such Restricted Payment, (A) . The provisions of this Section 8.5 shall not be breached by the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case payment of any Restricted Payment in excess Payments to Holdings for the purposes of $10,000,000Holdings making a dividend payment under clause (iv) of Holdings Ordinary Course Payments definition within 60 days after the declaration of the dividend by Holdings, if at such date of declaration, the Borrower shall making of such payment would not have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)been in violation of this Section.
Appears in 2 contracts
Samples: Credit Agreement (Owens-Illinois Group Inc), Credit Agreement (Owens-Illinois Group Inc)
Restricted Payments. Declare Neither the Borrower nor any of its Restricted Subsidiaries shall declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(ci) the Borrower may purchasemake (a) payments to Holdings sufficient to fund Holdings' payments under the Jordan Management Agreement as in effect as of the Closing Date for (1) consulting, redeemfinancial, retiremanagement and investment banking fees plus (2) out of pocket expenses and indemnities, defease or make other payments provided that the obligations in respect of such fees under the 2,598 shares Jordan Management Agreement shall be subordinated expressly to the Secured Obligations and (b) distributions to Holdings sufficient to fund Holdings' payment of its Equity Interests directors' fees and indemnities (whether or not Holdings applies the funds to the payment of such directors' fees) provided that such Restricted Payments shall not exceed $150,000 plus out of pocket expenses in any warrantfiscal year of the Borrower;
(ii) so long as Holdings files consolidated income tax returns that include the Borrower, right or option on the Business Day immediately preceding the date on which Holdings shall be required to acquire make any tax related payment to any Governmental Authority, the Borrower may make distributions to Holdings to fund Holdings' payment of tax obligations, from funds legally available for such Equity Interests purpose, in an amount not to exceed the amount calculated pursuant to certain Stock Purchase Agreements the Tax Sharing Agreement attached hereto as Exhibit P; provided, Holdings shall in turn utilize such amount thereof as is necessary to pay its consolidated tax obligations; provided, further, that after the occurrence and during the continuance of any Default or Unmatured Default, the amount permitted to be paid to Holdings shall not exceed the lesser of (Restated1) between the Borrower and certain owners of Equity Interestsamount calculated pursuant to the Tax Sharing Agreement, (2) the "Consolidated Tax" (as defined in the Tax Sharing Agreement as in effect on the Closing Date;) and (3) the "Calculated Tax" of the "Acquisition Group" (each as defined in the Tax Sharing Agreement as in effect on the Closing Date); and provided, further, any amount otherwise permitted to be paid under this clause (ii) shall be reduced by the amount of any tax related payments made directly by the Borrower or any Subsidiary to any Governmental Authority.
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(fiii) the Borrower may make other Restricted Payments so long as distributions to Holdings to fund (ia) no Default exists immediately prior payments required to be made by and after giving effect thereto and (ii) upon giving effect actually made by Holdings in respect of interest due on an unaccelerated basis on the Holdings Subordinated Debt, unless such payments are prohibited by the subordination terms applicable to such Restricted PaymentIndebtedness; provided, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000however, the Borrower may make such distributions with respect to the Holdings Subordinated Debt only on March 1 and September 1 of each year (or the Business Day immediately prior thereto if such date is not a Business Day); (b)
(1) payments made by Holdings to repurchase its common stock made pursuant to Section 7.2, 7.3 or 7.4 of the Stockholders Agreement as in effect on the Closing Date and (2) payments required to be made by and actually made by Holdings in respect of amounts due on an unaccelerated basis on the Repurchase Indebtedness unless such payments are prohibited by the subordination terms applicable to such Repurchase Indebtedness in an aggregate amount for all such payments under clauses (1) and (2) not to exceed $4,000,000, such distributions to be made not earlier than one Business Day prior to the date on which Holdings is to make such payments; provided, that, Holdings shall first satisfy any such payment obligation by canceling Indebtedness under the Management Note, if any, of the Person to whom Holdings is obligated to make such payment; and (c) mandatory payments of dividends due on the Preferred Stock to the extent Indebtedness for such payments is Permitted Holdings Indebtedness under clause (c) of the definition thereof, such distributions to be made not earlier than one Business Day prior to the date on which Holdings is required to make such payments;
(iv) the Borrower may make payments to Xxxxxx X. Xxxxx or to Holdings sufficient to make payment of amounts due under the Employment Agreements without taking into account any amendment, modification, supplement or restatement thereof or the adjustment of any such amount pursuant to the terms thereof resulting from a change of facts and circumstances after the date of this Agreement (other than increases in base salary approved pursuant to Section 2 of the Employment Agreement) unless the Agent and the Required Lenders shall have delivered consented to the Administrative Agent terms thereof if the effect of such amendment, modification, supplement, restatement or adjustment is to increase the amount or accelerate the time of payment of such amounts;
(v) the Borrower may make mandatory payments of interest, principal or premium, if any, when due on the Permitted Subordinated Indebtedness unless such payments are prohibited by the terms of such Indebtedness or the subordination agreements related thereto;
(vi) any Restricted Subsidiary may make distributions to the Borrower or to a Pro Forma Compliance Certificate Restricted Subsidiary;
(vii) the Borrower or any Restricted Subsidiary may defease, redeem or repurchase Permitted Subordinated Indebtedness with respect theretothe net cash proceeds from an issuance of Permitted Refinancing Indebtedness;
(viii) any Restricted Subsidiary may defease, redeem or repurchase Permitted Subordinated Indebtedness with the net cash proceeds from the substantially concurrent sale (other than to the Borrower or any subsidiary of the Borrower) of Equity Interests of such Restricted Subsidiary (other than Redeemable Stock).;
(ix) payments in connection with the Stock Acquisition and related financing transactions as described under the "The Transactions" and "Use of Proceeds" provisions contained in the Offering Memorandum;
Appears in 2 contracts
Samples: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)
Restricted Payments. Declare Neither Holdings nor the Borrower will, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(a) each Subsidiary Holdings or the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiary, ratably according to their respective holdings additional shares of the type of Equity Interest in respect of which such Restricted Payment is being madeits common stock;
(b) each Loan Party and each Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in common pay dividends ratably with respect to their Equity Interests of such Personto the Borrower or any other Credit Party (other than Holdings or Freedom Holding, which are covered in clauses (d) and (e) below);
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interests, as in effect on the Closing Dateits Subsidiaries;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with Holdings in respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments Permitted Corporate Expenses so long as (i1) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Paymentor Event of Default would result therefrom, (A2) the Loan Parties would be in Borrower demonstrates, to the Administrative Agent’s reasonable satisfaction, pro forma compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis Sections 6.12 through 6.15 after giving effect to the applicable dividend (and with the understanding that no such dividend shall be paid until such covenants are in effect and being measured as and when required under such Sections), (3) the aggregate amount of such dividends and related Permitted Corporate Expenses do not exceed the Permitted Corporate Expenses Cap for the applicable fiscal quarter and applicable fiscal year, and (B4) if any portion of such dividend is used to pay amounts owing under the Consolidated Net Leverage Ratio as so calculated Freedom Consulting Agreement, such amount does not exceed the Permitted Freedom Consulting Payment Cap; provided, however, that (i) for any month ending prior to the end of the first full fiscal quarter to occur after the quarter in which the Opening Date occurs, the Borrower may pay dividends to Holdings in an amount not to exceed $65,000 per month with respect to Permitted Corporate Expenses (other than payments under the Freedom Consulting Agreement and the Freedom Holding Note, payments of interest or principal on any outstanding debt of Holdings and dividends in respect of preferred or common stock, none of which shall be paid with such $65,000 amounts), and (ii) for the first fiscal quarter that the Borrower is at least 0.25 less required to comply with the financial covenants set forth in Sections 6.12 through 6.15, no more than the maximum then First PCE Dividend Amount shall be permitted to be paid for such quarter;
(e) Holdings may pay accrued dividends on its outstanding preferred stock using proceeds of dividends permitted under Section 8.11(a6.06(d); and
(f) so long as no Default or Event of Default is then outstanding or would result therefrom, and Miami Casino Management, LLC (and, or any successor thereto) remains subject to a subordination agreement in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered form and substance acceptable to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Agent, payments of Management Fees as and when required by the Management Agreement.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Florida Gaming Corp)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiaryadditional shares of its common stock, (b) (i) wholly-owned Subsidiaries may declare and pay dividends ratably according with respect to their respective holdings Equity Interests and (ii) Subsidiaries which are not wholly-owned may declare and pay dividends ratably with respect to their Equity Interests so long as no Default or Event of the type of Equity Interest in respect of which Default has occurred and is continuing prior to making such Restricted Payment is being made;
or would arise after giving effect (bincluding giving effect on a pro forma basis) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
thereto, (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interestsits Subsidiaries, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may declare and pay quarterly cash dividends to the ESOP with respect to taxes ratably allocated by UGI Corporation to the Borrower’s Class C Preferred Stock and additional contributions from business of the Borrower and its Subsidiaries, (e) distributions of property by a Subsidiary to the ESOP Borrower in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrowerconnection with a transaction permitted by Section 6.04(h), provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower and its Subsidiaries may make any other Restricted Payments Payment so long as (i) no Default exists immediately or Event of Default has occurred and is continuing prior and to making such Restricted Payment or would arise after giving effect (including giving effect on a pro forma basis) thereto and (ii) upon the aggregate amount of Restricted Payments under this clause and (f) shall not exceed, during any four (4) consecutive fiscal quarters, $25,000,000 plus 50% of the Consolidated Net Income for such four (4) consecutive fiscal quarters unless (x) the Total Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower immediately prior to the date such Restricted Payment is made was no greater than 3.50 to 1.0 and (y) the Total Leverage Ratio is no greater than 3.50 to 1.0 calculated on a pro forma basis giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 2 contracts
Samples: Credit Agreement (Ugi Corp /Pa/), Credit Agreement (Ugi Corp /Pa/)
Restricted Payments. (a) Declare or make, directly or indirectly, any Restricted Payment, Payment or incur set aside any obligation amount for any such purpose.
(contingent or otherwiseb) to do so, except thatNotwithstanding the provisions of paragraph (a) above:
(ai) each Subsidiary the transactions contemplated by the Plan of Reorganization to occur on the Funding Date may be consummated on the Funding Date;
(ii) Holdings may make Restricted Payments so long as the Payment Conditions are satisfied both before and after giving effect to Persons that own such Restricted Payments;
(iii) Holdings may make Restricted Payments for the repurchase, retirement or other acquisition for value of Equity Interests of Holdings held by any future, present or former employee or director of Holdings or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan of Holdings or its Subsidiaries, provided that the aggregate amount of such Restricted Payments in such Subsidiaryany fiscal year shall not exceed $5,000,000, ratably according to their respective holdings provided that at the time of the type of Equity Interest in respect of which any such Restricted Payment is being made;made pursuant to this clause (iii) and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing; and
(biv) each Loan Party Holdings may make Restricted Payments in any fiscal year commencing on or after January 1, 2011, so long as (x) immediately after giving effect thereto no Default or Event of Default shall have occurred and each Subsidiary may declare be continuing and make dividend payments or other distributions payable solely in common Equity Interests (y) the aggregate amount of such Person;
Restricted Payments made pursuant to this clause (civ) shall not exceed (A) the Borrower may purchase, redeem, retire, defease or make other payments lesser of (1) the Borrower’s Portion of Excess Cash Flow (as defined in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements Term Loan Credit Agreement (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
date hereof)) and (d2) no Default exists immediately prior and the sum of (aa) $30,000,000 plus (bb) so long as Excess Availability (on the date of such Restricted Payment after giving effect thereto, the Borrower may purchase, redeem, retire, defease to any Loans incurred (or to be incurred) or Letters of its Equity Interests pursuant Credit issued (or to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(ebe issued) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to on such date) shall exceed $30,000,000 for any fiscal year 20% of the BorrowerTotal Commitment as then in effect, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and $20,000,000 minus (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under aggregate principal amount of Term Loans theretofore purchased pursuant to Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto10.09(iv).
Appears in 2 contracts
Samples: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiarythe Borrower and to other Subsidiaries, ratably according to their respective holdings of the type of Equity Interest Stock and Stock Equivalent in respect of which such Restricted Payment is being made;
(b) each Loan Party the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common Equity Interests stock or other common Stock and Stock Equivalents of such PersonPerson to holders of the Stock and Stock Equivalents thereof, ratably according to their respective holdings of the type of Stock and Stock Equivalent in respect of which such Restricted Payment is being made;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of declare and pay the 2,598 shares of its Equity Interests or any warrant, right or option Closing Date Dividend to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect Stockholders on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or[intentionally omitted];
(e) the Borrower may declare and directly or indirectly pay quarterly cash dividends and distributions to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Stockholders in an aggregate amount not to exceed $30,000,000 for any fiscal year provided, (i) no Default shall have occurred and be continuing or would result therefrom, (ii) the Consolidated Leverage Ratio was less than or equal to 2.00 to 1.00, (iii) (x) no such cash dividend or distribution may be paid in excess of $20,000,000 in the aggregate for all such dividends or distributions after the Closing Date and (y) no such cash dividend or distribution may be paid if during the period of twelve months following the proposed payment of such dividend or distribution, the Borrower DIRECTV Agreement would expire, (iv) no such cash dividend or distribution may be paid in any fiscal year until after the Borrower makes the prepayment required by subsection 2.8(e) in such fiscal year, (v) the aggregate amount of such cash dividends and distributions paid in any fiscal year shall not exceed an amount equal to (x) Excess Cash Flow for the preceding year minus (y) the amount of Excess Cash Flow for such preceding year required by subsection 2.8(e) to be applied to the prepayment of the BorrowerLoans, provided that within five Business Days of making and (vi) immediately before and immediately after giving pro forma effect to any such payment payment, the Borrower receives a payment shall be in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; andcompliance with all covenants contained in this Agreement;
(f) the Borrower may reimburse all reasonable out-of-pocket expenses incurred by the Sponsor Group in their monitoring and oversight of the Borrower and its Subsidiaries; and
(g) on one occasion after January 1, 2009, upon at least five (5) Business Days’ prior written notice to the Agent (and once received, the Agent agrees to make other Restricted Payments such notice available to the Lenders), Borrower may declare and pay a cash dividend or distribution to MVS Multivision and/or Sponsor to be used by MVS Multivision and/or Sponsor, so long as no payment Default or Event of Default shall have occurred and be continuing or would result therefrom, to purchase Stock and Stock Equivalents, warrants, rights or options to acquire such Stock or Stock Equivalents from the directors or senior management of the Borrower (“Management Shares”) in connection with the termination of their employment; provided that the amount of such cash dividend or distribution shall not exceed the lesser of (i) no Default exists immediately prior and after giving effect thereto and 10% of the sum of Consolidated EBITDA for the trailing twelve months ending as of the last day of the most recent fiscal quarter for which a Compliance Certificate has been delivered to Agent preceding the date of such dividend or distribution or (ii) upon giving effect 50% of the fair market value of all Management Shares then outstanding, determined in a manner reasonably acceptable to such Restricted Payment, Agent (A) a “Special Management Repurchase Dividend”). To the Loan Parties would be in compliance with extent that the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then Borrower or its Subsidiaries are permitted under Section 8.11(a) (and, in the case of to make any Restricted Payment in excess of $10,000,000pursuant to this Section 6.6, the Borrower shall have delivered same may be made as a loan or advance to the Administrative Agent a Pro Forma Compliance Certificate with recipient thereof and in such case the amount of such loan or advance shall, until repaid, prepaid, redeemed, acquired or otherwise returned, reduce the amount of Restricted Payments that may be made by the Borrower and its Subsidiaries in respect thereto)thereof.
Appears in 2 contracts
Samples: Credit Agreement (Hemisphere Media Group, Inc.), Credit Agreement (Hemisphere Media Group, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any No Loan Party shall make payments which are Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except that:
(a) each Subsidiary The Loan Parties may make payments and other distributions as expressly permitted under Section 5.01(a)(v), Section 5.01(a)(vi) and Article III of the Depositary Agreement; provided that, solely with respect to any Restricted Payment to be made on the Term Conversion Date pursuant to the first proviso of Section 3.10(b) of the Depositary Agreement and Sections 3.8(c)(i) and 3.9(b)(iv) of the Depositary Agreement, no Revolving Loans are outstanding as of the date of such Restricted Payment before and after giving effect to such Restricted Payment.
(b) The Borrower may distribute to Holdings (for further distribution to the Sponsor or its designee) any Bolt Distributions regardless of whether any Distribution Conditions are then satisfied, so long as, (i) prior to the Term Conversion Date, at least five Business Days prior to the date of such Restricted Payment, the Borrower shall have provided the Administrative Agent and the Independent Engineer with a certificate, dated the date of delivery of such certificate, certifying that the Project is reasonably expected to achieve the Commercial Operation Date by the Date Certain, that the Borrower is reasonably expected to achieve Term Conversion by the Term Conversion Date Certain and that the Loan Parties have sufficient funds (taking into account amounts on deposit in the Construction Account and the Local Accounts, and remaining availability under the Construction Facility) to achieve Term Conversion and (ii) as of the date of such Restricted Payment, no Default under Section 7.01(b) or Section 7.01(c)(i) has occurred and is continuing, and no Event of Default has occurred and is continuing.
(c) [Reserved].
(d) Restricted Payments may be made with the proceeds of amounts on deposit in or credited to any Excluded Commodity Account, in an aggregate amount not to exceed at any time (i) the amount of Equity Commodity Contributions made prior to such time less (ii) any amounts that have been previously transferred as a Restricted Payment pursuant to this clause (d).
(e) Any Loan Party may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according any other Loan Party.
(f) Any Loan Party may make payments to their respective holdings any Affiliate of the type Loan Parties under the Management Services Agreement (including the Management Fee), any Permitted O&M Agreement, any Permitted Energy Management Agreement or any other Project Contract entered into in accordance with this Agreement.
(g) On or after the first Quarterly Payment Date following the Term Conversion Date, so long as the Distribution Conditions are satisfied as of Equity Interest in respect the date of which any such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect theretoPayment, the Borrower may purchasemake Restricted Payments to Sponsor, redeemHoldings or its designee with amounts on deposit in, retireor credited to, defease any the Distribution Suspense Account in accordance with Section 3.10 of its Equity Interests pursuant the Depositary Agreement.
(h) Prior to certain Restated Stock Transfer Restriction Agreements between the Term Conversion Date and so long as no Event of Default has occurred and is continuing, the Borrower may make the following withdrawals and transfers from the Construction Account: (i) for Permitted Tax Distributions and (ii) for general and administrative costs of the Project and the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock Guarantors directly incurred by Holdings and additional contributions from the Borrower to the ESOP Sponsor, and other corporate overhead expenses in an aggregate amount not to exceed $30,000,000 for 100,000 in any fiscal year of the Borrower, provided that within five Business Days of making such payment the in each case Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) has certified that the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 have sufficient funds (taking into account amounts on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, deposit in the case of any Restricted Payment in excess of $10,000,000, Construction Account and the Borrower shall have delivered Local Accounts and remaining availability under the Construction Facility) to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)achieve Term Conversion.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Restricted Payments. Declare or make, directly or indirectly, No Credit Party shall make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary intercompany loans and advances may make Restricted Payments be made by any Credit Party to Persons that own Equity Interests in such Subsidiary, ratably according any other Credit Party to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeextent permitted by Section 6.3(a)(viii);
(b) each Loan Party Subsidiaries of Borrower may pay dividends and each distributions to Borrower or any Subsidiary Guarantor and Imagination may declare pay dividends and make dividend payments or other distributions payable solely in common Equity Interests of such Personto Mid-Missouri Telephone;
(c) the Borrower any Credit Party may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Dateemployee loans permitted under Section 6.4(b);
(d) no Default exists immediately prior any Credit Party may make payments of principal and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any interest of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; orIntercompany Notes issued in accordance with Section 6.3(a)(viii);
(e) on each IDS Payment Date (other than March 30, 2005), so long as (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of the payment of such cash dividends, (ii) no Interest Deferral Period has occurred and is continuing, (iii) no Dividend Suspension Period has occurred and is continuing, (iv) no Deferred Interest remains unpaid under any Subordinated Debt and (v) the Compliance Certificate required to be delivered pursuant to Section 4.1 in respect of the Fiscal Quarter most recently ended prior to such IDS Payment Date has been timely delivered, Borrower may declare and pay quarterly cash dividends to the ESOP holders of its Class A common stock on such IDS Payment Date in an aggregate amount which, together with the aggregate amount of all other cash dividends paid by Borrower on its Class A common stock (excluding cash dividends paid by Borrower on its Class A common stock on March 30, 2005 pursuant to Section 6.14(m)) and redemptions or repurchases (excluding such redemptions or repurchases permitted by Section 6.14(l)) by Borrower of shares of its common stock from its officers, employees, consultants and directors in connection with the termination of employment or engagement of any such Person after the Closing Date, is less than the amount of Excess Cash as of such IDS Payment Date;
(f) on each IDS Payment Date (other than March 30, 2005) (for these purposes, a “Subject IDS Payment Date”), subject to Section 6.19(b) hereof and the subordination provisions of the applicable Subordinated Debt Documents and the other terms of Article 10 of the applicable IDS Subordinated Notes Indenture (and the comparable provisions of the applicable Additional Subordinated Debt Documents) and so long as (i) no Interest Deferral Period has occurred and is continuing and (ii) the Compliance Certificate required to be delivered pursuant to Section 4.1 in respect of the Fiscal Quarter most recently ended prior to such Subject IDS Payment Date has been timely delivered, Borrower may pay quarterly accrued and unpaid interest on the Subordinated Debt and prepay any Deferred Interest in cash on such Subject IDS Payment Date in an aggregate amount not to exceed:
(I) Distributable Cash as of such Subject IDS Payment Date minus
(II) the aggregate amount of (A) cash dividends paid by Borrower on its Class A common stock during the period from January 1, 2005 through the end of the Fiscal Quarter most recently ended prior to such Subject IDS Payment Date (excluding cash dividends paid by Borrower on its Class A common stock on March 30, 2005 pursuant to Section 6.14(m)), (B) cash redemptions or cash repurchases (excluding such redemptions or repurchases permitted by Section 6.14(l)) during such period by Borrower of shares of its common stock from its officers, employees, consultants and directors in connection with the termination of employment or engagement of any such Person and (C) cash interest payments made by Borrower on the Subordinated Debt during such period (excluding cash interest payments made by Borrower on the Initial IDS Subordinated Notes on March 30, 2005 pursuant to Section 6.14(m)); provided, however, that notwithstanding the foregoing provisions of this Section 6.14(f), if, prior to such Subject IDS Payment Date the payment of interest on a particular series or issue of Subordinated Debt has been deferred pursuant to the Borrower’s interest deferral provisions of the Subordinated Debt Documents applicable to such particular series or issue of Subordinated Debt on eight (8) IDS Payment Dates in the aggregate occurring prior to such Subject IDS Payment Date, then subject to Section 6.19(b) hereof and the subordination provisions of such Subordinated Debt Documents and the other terms of Article 10 of the IDS Subordinated Notes Indenture (or the comparable provisions of the Additional Subordinated Debt Documents) applicable to such particular series or issue of Subordinated Debt, Borrower may pay quarterly accrued and unpaid interest on such particular series or issue of Subordinated Debt (and prepay Deferred Interest) in cash on such Subject IDS Payment Date;
(g) at any time that no Default or Event of Default has occurred and is continuing or would result, IDS Subordinated Notes permitted by Sections 6.3(a)(v), (vi) or (xv) may be refinanced with the proceeds of Subsequent IDS Subordinated Notes in accordance with Section 6.3(a)(xv) and Permitted Additional Subordinated Debt permitted by Section 6.3(a)(vii) may be refinanced with the proceeds of Subsequent IDS Subordinated Notes in accordance with Section 6.3(a)(xv) or Permitted Additional Subordinated Debt in accordance with Section 6.3(a)(vii);
(h) the Credit Parties may make the Restricted Payments on the Closing Date contemplated by the Restructuring Documents as a part of the Related Transactions;
(i) Borrower may redeem or repurchase shares of its common stock from its officers, employees, consultants and directors in connection with the termination of employment or engagement of any such Person, provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the aggregate amount paid in respect of all such shares so redeemed or repurchased does not exceed $2,000,000 in any Fiscal Year;
(j) Borrower may issue Class C Preferred Stock and additional contributions from the Borrower A common stock as part of Initial IDS Securities required to be issued pursuant to the ESOP Investor Rights Agreement upon exchange of any Class B common stock of Borrower issued on the Closing Date as a part of the Related Transactions so long as the Initial IDS-Linked Subordinated Notes issued as part of such Initial IDS Securities are permitted to be issued under Section 6.3(a)(vi);
(k) Borrower may pay dividends on its common stock solely in shares of common stock of Borrower;
(l) so long as no Default or Event of Default has occurred and is continuing or would result, Borrower may repurchase shares of its common stock solely in exchange for or with cash received from an issuance of its common stock permitted by Section 6.5(a); and
(m) on March 30, 2005, subject to Section 6.19(b) hereof and the subordination provisions of and the other terms of Article 10 of the Initial IDS Subordinated Notes Indenture and so long as no Default or Event of Default has occurred and is continuing or would result, Borrower may pay current interest on the Initial IDS Subordinated Notes in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the 2,958,000.00 and Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect pay cash dividends on its Class A common stock in an aggregate amount not to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of exceed $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)1,706,000.00.
Appears in 2 contracts
Samples: Credit Agreement (Otelco Inc.), Credit Agreement (Otelco Telecommunications LLC)
Restricted Payments. Declare The Company shall not, nor shall it permit any Subsidiary to, declare, make or make, directly or indirectly, pay any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
Payments other than (a) each Subsidiary may make permitted Restricted Payments to Persons that own Equity Interests in such Subsidiarylisted on Schedule 7.17, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party payments and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests prepayments of such Person;
debt permitted by Section 7.01(ii)(j), (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect and prepayments of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements Transaction Facilities (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Amendment No. 5 Closing Date;
); provided that (i) any voluntary prepayment under the Existing 2015 Term Loan Credit Agreement, any Note Purchase Agreement or, to the extent such prepayment results in a commitment reduction, this Agreement or the Existing Revolving Credit Agreement, shall be made together with voluntary prepayments of the other Transaction Facilities on a pro rata basis by reference to the outstanding principal balances thereunder (and the Commitments shall be reduced by the amount of any such voluntary prepayment made under this Agreement) and (ii) provided that the Company and its Subsidiaries shall not pay any make whole amount to the Noteholders in connection with any prepayment of the NPA Notes upon the consummation of the Technology Disposition except in accordance with Section 6.19(b), and (d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease payments of dividends by any of its Equity Interests pursuant Subsidiary to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP Loan Parties ratably with respect to the Borrower’s Class C Preferred Stock and additional contributions from Equity Interests held by such Loan Parties. Notwithstanding the Borrower to foregoing, neither the ESOP in an aggregate amount not to exceed $30,000,000 for Company nor its Subsidiaries shall make any fiscal year of the Borrower, share repurchases; provided that within five Business Days for the avoidance of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest doubt any share repurchases or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect required to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case pay withholding tax liabilities of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered employees pursuant to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Company’s “Chicago Bridge & Iron 2008 Long-Term Incentive Plan, as Amended” in effect as of the Amendment No. 5 Closing Date shall be expressly permitted.
Appears in 2 contracts
Samples: Credit Agreement (Chicago Bridge & Iron Co N V), Revolving Credit Agreement (Chicago Bridge & Iron Co N V)
Restricted Payments. Declare The Company will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Company may make Restricted Payments pursuant to Persons that own Equity Interests and in such Subsidiary, ratably according to their respective holdings accordance with stock option plans or other benefit plans for management or employees of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchaseits Subsidiaries, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior the Company and after giving effect thereto, the Borrower its Subsidiaries may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP make Restricted Payments in an aggregate amount not to exceed $30,000,000 for any fiscal year 100,000,000 of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP Restricted Payments made pursuant to the Borrower; and
this clause (fd) and (e) the Borrower Company and its Subsidiaries may make any other Restricted Payments Payment pursuant to this clause (e) so long as (i) no Default exists immediately or Event of Default has occurred and is continuing prior and to making such Restricted Payment pursuant to this clause (e) or would arise after giving effect (including giving effect on a Pro Forma Basis) thereto and (ii) upon the Leverage Ratio is equal to or less than the Applicable Restricted Payment Ratio Level after giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 including giving effect on a Pro Forma Basis Basis) to any such Restricted Payment made pursuant to this clause (e). As used in the foregoing clause (e), “Applicable Restricted Payment Ratio Level” means a ratio equal to 4.00 to 1.00. For the avoidance of doubt, it is hereby understood and agreed that any Restricted Payment made at a time when all of the conditions set forth in clause (e) of this Section 6.07 are satisfied shall utilize the basket set forth in such clause (e) and shall not utilize (or be deemed to utilize) the basket set forth in clause (d) of this Section 6.07. Notwithstanding the foregoing, and for the avoidance of doubt, (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on, or required payment of any interest with respect to, any Permitted Convertible Notes, in each case, in accordance with the terms of the indenture governing such Permitted Convertible Notes, shall not constitute a Restricted Payment; provided that, to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Note (excluding any required payment of interest with respect to such Permitted Convertible Note and excluding any payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (Bb) such conversion or payment does not trigger or correspond to an exercise or early unwind or settlement of a corresponding portion of the Consolidated Net Leverage Ratio Bond Hedge Transactions constituting Permitted Call Spread Swap Agreements relating to such Permitted Convertible Note (including, for the avoidance of doubt, the case where there is no Bond Hedge Transaction constituting a Permitted Call Spread Swap Agreement relating to such Permitted Convertible Note), the payment of such excess cash shall constitute a Restricted Payment notwithstanding this clause (i); and (ii) any required payment with respect to, or required early unwind or settlement of, any Permitted Call Spread Swap Agreement, in each case, in accordance with the terms of the agreement governing such Permitted Call Spread Swap Agreement shall not constitute a Restricted Payment; provided that, to the extent cash is required to be paid under a Warrant Transaction as a result of the election of “cash settlement” (or substantially equivalent term) as the “settlement method” (or substantially equivalent term) thereunder by the Company (or its Affiliate) (including in connection with the exercise and/or early unwind or settlement thereof), the payment of such cash shall constitute a Restricted Payment notwithstanding this clause (ii). Notwithstanding the foregoing, the Company may repurchase, exchange or induce the conversion of Permitted Convertible Notes by delivery of shares of the Company’s common stock and/or a different series of Permitted Convertible Notes (which series (x) matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the analogous date under the indenture governing the Permitted Convertible Notes that are so calculated is at least 0.25 repurchased, exchanged or converted and (y) has terms, conditions and covenants that are no less favorable to the Company than the maximum then permitted under Section 8.11(aPermitted Convertible Notes that are so repurchased, exchanged or converted (as determined by the board of directors of the Company, or a committee thereof, in good faith)) (any such series of Permitted Convertible Notes, “Refinancing Convertible Notes”) and/or by payment of cash (in an amount that does not exceed the proceeds received by the Company from the substantially concurrent issuance of shares of the Company’s common stock and/or Refinancing Convertible Notes plus the net cash proceeds, if any, received by the Company pursuant to the related exercise or early unwind or termination of the related Permitted Call Spread Swap Agreements pursuant to the immediately following proviso); provided that, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Notes that are so repurchased, exchanged or converted, the Company shall (and, for the avoidance of doubt, shall be permitted under this Section 6.07 to) exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the case portion of any Restricted Payment in excess of $10,000,000the Permitted Call Spread Swap Agreements, the Borrower shall have delivered if any, corresponding to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)such Permitted Convertible Notes that are so repurchased, exchanged or converted.
Appears in 2 contracts
Samples: Credit Agreement (Cimpress N.V.), Credit Agreement (Cimpress N.V.)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiaryadditional shares of its common stock, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in common pay dividends ratably with respect to their Equity Interests of such Person;
Interests, (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interestsits Subsidiaries, as in effect on the Closing Date;
(d) so long as no Default exists immediately prior has occurred and after giving effect theretois continuing or will result therefrom and so long as the Fixed Charge Coverage Ratio and the Adjusted Leverage Ratio provided in Section 6.11 will not be violated as a result thereof, the Borrower may purchasedeclare and pay dividends, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) so long as no Default has occurred and is continuing or will result therefrom, the Borrower may pay quarterly cash dividends repurchase Equity Interests (i) in any amount if the Adjusted Leverage Ratio is less than 1.00 to 1.00 on a pro forma basis after giving effect to such repurchase and the Borrower has Liquidity of not less than $15,000,000 after payment of such repurchase (any repurchase made during a fiscal quarter that ends with an Adjusted Leverage Ratio of greater than 1.00 to 1.00 shall count against and be subject to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP limitation provided in (ii) below), or (ii) in an aggregate amount not exceeding $25,000,000 during any 4 quarter period if the Adjusted Leverage Ratio is less than or equal to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives 2.00 to 1.00 (but greater than 1.00 to 1.00) on a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and pro forma basis after giving effect thereto and (ii) upon giving effect to such Restricted Paymentrepurchase and the Borrower has Liquidity of not less than $15,000,000 after payment of such repurchase. Notwithstanding (e)(i) above, (A) the Loan Parties would be in compliance any repurchase made during a fiscal quarter that ends with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net an Adjusted Leverage Ratio as so calculated is at least 0.25 less of greater than the maximum then permitted under Section 8.11(a) (and1.00 to 1.00, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered count against and be subject to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)$25,000,000 limitation provided in (e)(ii) above.
Appears in 2 contracts
Samples: Credit Agreement (Kimball Electronics, Inc.), Credit Agreement (Kimball Electronics, Inc.)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may declare and make Restricted Payments to Persons that own Equity Interests 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) each Loan Party the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase(i) enter into any Permitted Call Spread Transaction and (ii) amend, redeem, retire, defease terminate or make other payments otherwise settle any Permitted Call Spread Transaction to the extent that any net payment in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between cash by the Borrower and certain owners in consideration therefor is permitted under another clause of Equity Interests, as in effect on the Closing Datethis Section 8.06;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower declare and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as Payments; provided, that, (i) no Event of Default exists immediately prior and after giving effect thereto or would result therefrom and (ii) upon after giving effect to any such Restricted PaymentPayment on a Pro Forma Basis, (A) the Loan Parties would Borrower shall be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis (without giving effect to the Leverage Increase Period thereunder) recomputed as of the end of the period of the four fiscal quarters of the Borrower most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b) (or, prior to the first such delivery, the financial statements for the fiscal quarter ended October 31, 2020) and (B) the Consolidated Net Leverage Ratio recomputed as so calculated of the end of the period of the four fiscal quarters of the Borrower most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b) (or, prior to the first such delivery, the financial statements for the fiscal quarter ended October 31, 2020) is at least 0.25 less not greater than the maximum then permitted Consolidated Leverage Ratio that is 0.25:1.00 lower than the Consolidated Leverage Ratio required under Section 8.11(a) (andwithout giving effect to the Leverage Increase Period thereunder);
(e) the Borrower may (x) repurchase fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversions of convertible securities or exercises of warrants or options or (y) “net exercise” or “net share settle” warrants or options;
(f) so long as no Event of Default has occurred and is continuing pursuant to Section 9.01(a)(i)-(ii), Section 9.01(f) or Section 9.01(g), the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to (or make payments on behalf of) directors, officers, employees or other providers of services to the case Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations relating to the vesting, settlement or exercise of such Equity Interests or rights;
(g) the Borrower may make any Restricted Payment in excess that has been declared by the Borrower, so long as (A) such Restricted Payment would be otherwise permitted under clause (a) of $10,000,000, this Section 8.06 at the time so declared and (B) such Restricted Payment is made within 60 days of such declaration;
(h) the Borrower shall have delivered may repurchase Equity Interests pursuant to any accelerated stock repurchase or similar agreement; provided that the payment made by the Borrower with respect to such repurchase would be otherwise permitted under clause (d) of this Section 8.06 at the time such agreement is entered into and at the time such payment is made;
(i) Borrower may repurchase Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Administrative Agent Borrower and the Subsidiaries at the original purchase price of such Equity Interests or rights in respect thereof pursuant to a Pro Forma Compliance Certificate right of repurchase set forth in equity compensation plans in connection with respect thereto)a cessation of service; and
(j) the receipt or acceptance by the Borrower or any Subsidiary of the return of Equity Interests issued by the Borrower or any Subsidiary to the seller of a Person, business or division as consideration for the purchase of such Person, business or division, which return is in settlement of indemnification claims owed by such seller in connection with such acquisition.
Appears in 2 contracts
Samples: Credit Agreement (Docusign, Inc.), Credit Agreement (Docusign, Inc.)
Restricted Payments. Declare or make, directly or indirectly, The Borrower will not make any Restricted Payment------------------- Payment at any time, provided that, so long as at the time thereof, and after -------- giving effect thereto, no Default or incur any obligation Event of Default shall have occurred and be continuing, the Borrower may make the following Restricted Payments (contingent or otherwise) subject, in each case, to do so, except that:the applicable conditions set forth below):
(a) each Subsidiary the Borrower may make Restricted Payments to Persons that own Equity Interests its members on or after April 12 of each fiscal year (the "current year") in an amount equal to the Tax ------------ Payment Amount for the immediately preceding fiscal year (the "prior ----- year"), so long as at least fifteen days prior to making any such Subsidiary---- Restricted Payment, ratably according the Borrower shall have delivered to their respective holdings each Lender (i) notification of the type amount and proposed payment date of Equity Interest in respect of which such Restricted Payment is being madeand (ii) a statement from the Borrower's independent certified public accountants setting forth a detailed calculation of the Tax Payment Amount for the prior year and showing the amount of such Restricted Payment and all prior Restricted Payments;
(b) each Loan Party and each Subsidiary the Borrower may declare and make dividend payments or other distributions payable solely in common Equity Interests respect of such Person;Management Fees to the extent permitted under Section 8.11 hereof; Credit Agreement ----------------
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests interest on Affiliate Subordinated Indebtedness constituting Supplemental Capital or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing DateCure Monies;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may make payments in respect of Preferred Membership Interests in an aggregate amount up to but not exceeding (prior to the issuance of the Senior Notes by Mediacom) the amount of interest payable by Mediacom on the Mediacom Notes and (following the issuance of Senior Notes by Mediacom) the amount of interest payable by Mediacom on Senior Notes having a principal amount equal to the amount of capital contributions made by Mediacom in consideration for the issuance of such Preferred Membership Interests, provided that such payments shall not include any payment in -------- respect of, or the setting apart of money for a sinking or other analogous fund for, the purchase, redeemredemption, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between retirement or other acquisition by the Borrower and certain owners of Equity Interestsof, such Preferred Membership Interests or any rights related thereto; orand
(e) the Borrower may pay quarterly cash dividends to the ESOP with make payments in respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrowerprincipal of Affiliate Subordinated Indebtedness constituting Supplemental Capital or Cure Monies or to redeem, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principalretire or otherwise acquire Preferred Membership Interests, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as as
(i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment such payment in excess respect of $10,000,000the principal of Affiliate Subordinated Indebtedness constituting Cure Monies, at least one complete fiscal quarter shall have elapsed subsequent to the last date upon which the Borrower shall have utilized its cure rights under Section 9.02 hereof, without the occurrence of any Event of Default (and, for purposes hereof, unless the Borrower indicates otherwise at the time of any such payment, such payment shall be deemed to be made first from Cure Monies and second from Supplemental Capital);
(ii) after giving effect to such payment during any fiscal quarter (the "current fiscal quarter"), and to the making of any ---------------------- Capital Expenditures pursuant to Section 8.12(b) hereof during the current fiscal quarter, the Borrower would (as at the last day of the most recent fiscal quarter immediately prior to the current fiscal quarter) have been in compliance on a pro forma basis with Section 8.10 hereof and the Total Leverage Ratio calculated on a pro forma basis is at the time less than 5.50 to 1 (or, if lower, the applicable requirement at the time under Section 8.10(a) hereof), the determination of such compliance and such Total Leverage Ratio to be determined as if (x) for purposes of calculating the Total Leverage Ratio, the amount of such payment, together with the amount of any such Capital Expenditures, were added to Indebtedness, and (y) for purposes of calculating the Interest Coverage Ratio and Pro Forma Debt Service Coverage Ratio, the amount of such payment (and any Cure Monies received during the period for which the Interest Coverage Ratio or Pro Forma Debt Service Coverage Credit Agreement ---------------- Ratio is calculated), together with the amount of any such Capital Expenditures, represented additional principal of the Loans outstanding hereunder at all times during the respective fiscal quarter for which such Ratios are calculated and the amount of interest that would have been payable hereunder during such fiscal quarter were recalculated to take into account such additional principal or the amount of such payment in respect of the redemption, retirement or other acquisition by the Borrower of Preferred Membership Interests; and
(iii) at least three Business Days prior to the date of any such payment, the Borrower shall have delivered to the Administrative Agent Lenders a Pro Forma Compliance Certificate certificate of a Senior Officer setting forth calculations, in form and detail satisfactory to the Majority Lenders, demonstrating compliance with respect thereto)the requirements of this paragraph (e) after giving effect to such payment. Nothing herein shall be deemed to prohibit the payment of dividends by any Subsidiary of the Borrower to such Borrower or to any other Subsidiary of the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Mediacom LLC), Credit Agreement (Mediacom LLC)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiaryadditional shares of its common stock, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in common pay dividends ratably with respect to their Equity Interests of such Person;
Interests, (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interestsits Subsidiaries, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners the Subsidiaries may make Restricted Payments (i) to effect any merger or consolidation of Equity Interests; or
any Subsidiary of the Borrower permitted under Section 6.03 and (ii) certified by the Borrower to the Administrative Agent in writing as having a bona fide purpose directly related to effecting the capitalization of a Subsidiary to the extent such investment shall otherwise be permitted under Section 6.04 (as determined by the Administrative Agent in its reasonable discretion), and (e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower its Subsidiaries may make any other Restricted Payments Payment so long as no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would arise after giving effect (including giving effect on a Pro Forma Basis) thereto and the aggregate amount of all such Restricted Payments shall be (i) no Default exists immediately prior and without limitation at any time the Leverage Ratio (calculated on a Pro Forma Basis after giving effect thereto and (ii) upon giving effect to such Restricted Payment, ) shall be less than or equal to 2.75 to 1.00 and (Aii) shall not exceed (1) at any time the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted Payment) shall be greater than 2.75 to 1.00 and less than 3.00 to 1.00, during any twelve-month period an aggregate amount equal to $120,000,000 (calculated inclusive of all Restricted Payments made in reliance on this clause (1) and clause (2) during such period), and (B2) at any time the Consolidated Net Leverage Ratio as so (calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent on a Pro Forma Compliance Certificate with respect theretoBasis after giving effect to such Restricted Payment) shall be greater than or equal to 3.00 to 1.00, during any twelve-month period an aggregate amount equal to $95,000,000 (calculated inclusive of all Restricted Payments made in reliance on clause (1) and this clause (2) during such period).
Appears in 2 contracts
Samples: Credit Agreement (Deluxe Corp), Credit Agreement (Deluxe Corp)
Restricted Payments. Declare Neither Holdings nor the Parent Borrower will, nor will they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(a) each any wholly-owned Subsidiary may make Restricted Payments distribute any cash, property or assets to Persons Holdings, the Parent Borrower or any other Subsidiary that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeits direct or indirect parent;
(b) each Loan Party and each any Subsidiary may declare and make dividend payments or other distributions payable solely in common pay dividends ratably with respect to its Equity Interests of such PersonInterests;
(c) the Borrower Holdings may purchase, redeem, retire, defease or make other payments Restricted Payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for 250,000,000 during any fiscal year year; provided that, at the time of declaration (in the Borrowercase of a dividend) or payment (in all other cases) and after giving effect thereto, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior has occurred and after giving effect thereto is continuing and (ii) upon Holdings would be in compliance with Sections 6.09 and 6.11 after giving effect to such Restricted Payment and any Indebtedness being incurred in connection therewith; and
(d) Holdings may make any additional Restricted Payment in cash; provided that (i) the amount of such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Holdings after the Effective Date (other than those made pursuant to clause (c) above), does not exceed the sum, without duplication, of (A) 50% of Consolidated Net Income for the Loan Parties period (taken as one accounting period) from the beginning of the first fiscal quarter ending after the Effective Date to the end of Holdings’ most recently ended fiscal quarter for which financial statements are publicly available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, minus 100% of such deficit); plus (B) 100% of the aggregate net cash proceeds received by Holdings, during the period from the Effective Date to the date of such Restricted Payment, from the issuance by Holdings of additional Equity Interests (other than Disqualified Equity Interests or Equity Interests issued to a Subsidiary or to an employee stock ownership plan or trust), and (ii) at the time of declaration (in the case of a dividend) or payment (in all other cases) and after giving effect thereto, (i) no Default has occurred and is continuing and (ii) Holdings would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis Sections 6.09 and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any 6.11 after giving effect to such Restricted Payment and any Indebtedness being incurred in excess of $10,000,000connection therewith. Notwithstanding the foregoing, this Section 6.07 shall not apply at any time that (i) if both rating agencies shall then have a Credit Rating in effect, the Borrower Credit Ratings are Baa2 and BBB, respectively, with stable outlook or better or (ii) if only one rating agency shall then have delivered to the Administrative Agent a Pro Forma Compliance Certificate Credit Rating in effect, such Credit Rating is Baa2 or BBB, as applicable, with respect thereto)stable outlook or better.
Appears in 2 contracts
Samples: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Restricted Payments. Declare The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay for or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends and other distributions with respect to Persons that own its Equity Interests payable solely in such Subsidiary, ratably according to their respective holdings of the type of perpetual common Equity Interest in respect of which such Restricted Payment is being madeInterests;
(bi) each Loan Party and each any Subsidiary may declare and make dividend payments Restricted Payments to the Borrower or other distributions payable solely in common Equity Interests of such Personany Subsidiary Guarantor, and (ii) any Excluded Subsidiary may declare and pay Restricted Payments to the Borrower or any Subsidiary;
(c) any Subsidiary that is not a wholly-owned Subsidiary may declare and pay cash dividends to its equity holders generally so long as the Borrower may purchase, redeem, retire, defease (or make other payments a Subsidiary thereof which owns the equity interests in respect the Subsidiary paying such dividend) receives at least its proportional share thereof (based upon its relative holding of the 2,598 shares equity interests in the Subsidiary paying such dividend and taking into account the relative preferences, if any, of its the various classes of Equity Interests or any warrant, right or option to acquire issued by such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing DateSubsidiary);
(d) the Borrower or any Subsidiary may declare and pay Restricted Payments to the Parent in cash, provided that (i) the Parent shall use the proceeds of each such Restricted Payment to pay a regularly scheduled cash payment of interest on the New Notes, the Senior Notes or the Replacement Debt, (ii) no Default exists such Restricted Payment shall be made before the date that is 30 days prior to the due date (without giving effect to any grace period) of such regularly scheduled cash interest payment, (iii) no such Restricted Payment shall, when aggregated with all other Restricted Payments made pursuant to this Section 7.8(d) with respect to any such regularly scheduled cash interest payment, exceed the amount of such regularly scheduled cash interest payment, and (iv) immediately prior before and immediately after giving effect thereto, no Default shall or would exist, provided further that in no event shall the Borrower may purchase, redeem, retire, defease or any of its Equity Interests Subsidiary be prohibited by this clause (iv) from making any Restricted Payment to the Parent pursuant to certain Restated Stock Transfer Restriction Agreements between this Section 7.8(d) for more than 180 days in any consecutive 360 day period unless (i) an Event of Default has occurred and is continuing under Section 8.1(a) or 8.1(b), or (ii) the Borrower and certain owners maturity of Equity Interests; orthe Loans have been accelerated in accordance with the terms of this Agreement;
(e) the Borrower may declare and pay quarterly Restricted Payments in cash dividends to the ESOP with respect Parent in an amount that, during any fiscal year, would not exceed the portion of the income taxes payable by the Parent in such fiscal year attributable to the Borrower’s Class C Preferred Stock Borrower and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerits Subsidiaries; and
(f) the Borrower or any Subsidiary may make declare and pay other Restricted Payments so long as in cash, provided that (i) immediately before and immediately after giving effect thereto no Default exists shall or would exist, and (ii)(A) immediately prior before and after giving effect thereto the Senior Leverage Ratio shall not and (ii) upon giving effect to such Restricted Paymentwould not be greater than 2.25:1.00, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and or (B) immediately after giving effect thereto, the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under amount of all Restricted Payments made pursuant to this Section 8.11(a7.8(f)(ii)(B) (and, would not exceed $5,000,000 in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)aggregate.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Gci Inc), Credit and Guarantee Agreement (General Communication Inc)
Restricted Payments. Declare or make(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment; provided that from and after January 1, or incur any obligation (contingent or otherwise) to do so2019, except that:
(a) each Subsidiary the Company may make Restricted Payments if, at the time of and after giving effect to Persons that own Equity Interests in such Subsidiarythe proposed Restricted Payment:
(1) no Event of Default shall have occurred and be continuing or will occur as a consequence thereof;
(2) (x) with respect to Restricted Payments other than any Junior Financing Payment or Restricted Investment, ratably according immediately after giving effect to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment on a Pro Forma Basis, (i) the Senior Secured Net Leverage Ratio shall not exceed 4.00:1.00 and (ii) the Total Net Leverage Ratio shall not exceed 4.50:1.00, and (y) with respect to Restricted Payments constituting Junior Financing Payments or Restricted Investments, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, (i) the Senior Secured Net Leverage Ratio shall not exceed 4.00:1.00 and (ii) the Total Net Leverage Ratio shall not exceed 4.75:1.00; and
(3) after giving effect to such Restricted Payment on a Pro Forma Basis, the aggregate amount expended or declared for all Restricted Payments made on or after the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6) (7), (8), (9) and (10) of Section 4.07(b)) shall not exceed the sum (without duplication) of:
(i) 50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Company accrued on a cumulative basis during the period (taken as one accounting period) from the first day of the fiscal quarter of the Company in which the Issue Date occurs and ending on the last day of the most recently ended fiscal quarter for which internal financial information is being made;available at the time of such Restricted Payment; plus
(ii) 100% of the aggregate net proceeds (including the Fair Market Value of property other than cash) received by the Company subsequent to the Issue Date either (i) as a contribution to its common equity capital or (ii) from the issuance and sale of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion or exchange of Debt (including Redeemable Capital Interests) of the Company, and from the exercise of options, warrants or other rights to acquire such Qualified Capital Interests (other than, in each case, Capital Interests or Debt issued or sold to a Subsidiary of the Company); plus
(iii) 100% of the net reduction in Restricted Investments, made by the Company or any Restricted Subsidiary subsequent to the Issue Date, in any Person, resulting from (i) payments of interest on Debt, dividends, repayments of loans or advances, or any sale or disposition of such Restricted Investments (but only to the extent such items are not included in the calculation of Consolidated Net Income), or (ii) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (or the causing of a Person that is not a Subsidiary to become a Restricted Subsidiary), not to exceed in the case of any Person the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person subsequent to the Issue Date.
(b) each Loan Party Notwithstanding the provisions of Section 4.07(a), the Company and each its Restricted Subsidiaries may take the following actions:
(1) the payment of any dividend on Capital Interests in the Company or a Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests the consummation of any irrevocable redemption within 60 days after declaration thereof or the giving of such Personirrevocable notice, as applicable, if, at the declaration date or notice thereof, such payment was permitted by the foregoing provisions of this Section 4.07;
(c2) the Borrower may purchase, redeemrepurchase, retireredemption, defease defeasance or other acquisition or retirement of any Capital Interests of the Company by conversion into, or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of Qualified Capital Interests of the Company; provided, however, that the net cash proceeds from such sale of Qualified Capital Interests will be excluded from Section 4.07(a)(3)(ii) to the extent applied to any such purchase, repurchase, redemption, defeasance or other acquisition or retirement;
(3) the redemption, defeasance, repurchase or acquisition or retirement for value of any Junior Financing out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Company) of (x) Refinancing Debt of the Company or such Guarantor, as the case may be, Incurred in accordance with this Indenture or (y) Qualified Capital Interests of the Company;
(4) so long as no Event of Default has occurred and is continuing, the purchase, redemption, retirement or other acquisition for value of Capital Interests in the Company, MIPCo or any Parent Entity (or any payments to a Parent Entity for the purposes of permitting any such repurchase) held (i) in the case of the Company, by directors, officers, consultants, employees, former directors, former officers, former consultants or former employees of the Company or any Restricted Subsidiary (or their Affiliates, Immediate Family Members, estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or service or alteration of employment or service status or pursuant to the terms of any agreement under which such Capital Interests were issued (including any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement) and, for the avoidance of doubt, including any principal and interest payable on any promissory notes issued by the Company or any Parent Entity in connection with such purchase, redemption, retirement or other acquisition for value or (ii) in the case MIPCo, directly by the MIP Shareholders (or their Affiliates, Immediate Family Members, estates or beneficiaries under their estates); provided that, in the case of clauses (i) and (ii) above, the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition for value of such Capital Interests does not exceed $10.0 million in any calendar year; provided, further, that any unused amounts in any calendar year may be carried forward; provided, however, that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Company or any direct or indirect Parent Entity of the Company (to the extent contributed to the Company) to directors, officers, employees or consultants of the Company and its Restricted Subsidiaries that occurs after the Issue Date; provided, however, that the amount of such cash proceeds utilized for any such purchase, redemption, retirement, other acquisition for value or dividend will not increase the amount available for Restricted Payments under Section 4.07(a)(3); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date (provided, however, that the Company may elect to apply all or any portion of the aggregate increase contemplated by the proviso of this clause (4) in any calendar year and, to the extent any payment described under this clause (4) is made by delivery of Debt and not in cash, such payment shall be deemed to occur only when, and to the extent, the obligor on such Debt makes payments with respect to such Debt);
(5) dividend adjustments and repurchases of Capital Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities or the vesting of restricted stock units or deferred stock units (including any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement);
(6) Restricted Payments (A) to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Interests of the Company or the vesting of restricted stock units or deferred stock units and (B) consisting of: (i) payments made or expected to be made in respect of withholding or similar taxes or brokerage fees payable by any future, present or former officers, directors, employees, members of management or consultants of the 2,598 shares of its Equity Interests Company, any Restricted Subsidiary or any warrantParent Entity, right in each case, solely to the extent such taxes relate to the foregoing Persons’ ownership of Capital Interests in the Company; and/or (ii) repurchases of Capital Interests in consideration of the payments described in clause (i), including demand repurchases in connection with the exercise of stock options or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners vesting of Equity Interests, as in effect on the Closing Daterestricted stock units or deferred stock units;
(d7) so long as no Event of Default exists immediately prior has occurred and after giving effect theretois continuing or would result therefrom, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Restricted Payments constituting Junior Financing Payments in an aggregate amount not to exceed the greater of (x) $30,000,000 for any fiscal year 23.0 million and (y) 1.0% of Consolidated Total Assets;
(8) the extension of credit that constitutes intercompany Debt, the Incurrence of which is permitted pursuant to clauses (5), (6) and (7) of the Borrower, provided that within five Business Days definition of making such payment “Permitted Debt”;
(9) as required by the Borrower receives a payment in cash from the ESOP as a payment terms of principal, interest or other charges on Indebtedness contracts of the ESOP Company or any Restricted Subsidiary that are in effect on the Issue Date and Restricted Payments made pursuant to the BorrowerTransactions; and
(f10) the Borrower may make purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Junior Financing (A) at a purchase price not greater than 101% of the principal amount of such Junior Financing in the event of a change of control in accordance with provisions similar to Section 4.14 or (B) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to Section 4.10; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, the Company has complied with its obligations set forth in Section 4.14 of this Indenture;
(c) If the Company makes a Restricted Payment which, at the time of the making of such Restricted Payment, in the good faith determination of the Company, would be permitted under the requirements of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustment made in good faith to the Company’s consolidated financial statements affecting Consolidated Net Income.
(d) The amount of all Restricted Payments so long (other than cash) will be the Fair Market Value on the date of such Restricted Payment of the assets or securities proposed to be transferred or issued by the Company or any of its Restricted Subsidiaries, as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect the case may be, pursuant to such Restricted Payment, .
(Ae) the Loan Parties would be in For purposes of determining compliance with the financial covenants set forth in this Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and4.07, in the case of any event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in excess clauses (1) to (10) of $10,000,000Section 4.07(b) and/or one or more of the clauses contained in the definition of “Permitted Investments,” or is entitled to be made pursuant to Section 4.07(a), the Borrower shall have delivered Company will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part), in its sole discretion, such Restricted Payment or Investment (or portion thereof) among such clauses (1) to (10) of Section 4.07(b), and/or one or more of such clauses contained in the definition of “Permitted Investments” hereunder, or Section 4.07(a), in each case, in a manner that otherwise complies with this Section 4.07.
(f) Notwithstanding anything in this Section 4.07, no Investment may be made in any Unrestricted Subsidiary consisting of Intellectual Property which is material to the Administrative Agent business of the Company and its Restricted Subsidiaries, taken as a Pro Forma Compliance Certificate whole.
(g) For purposes of determining compliance with respect thereto)any U.S. dollar denominated restriction on Restricted Payments, the U.S. dollar equivalent of a Restricted Payment denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date the Company or the Restricted Subsidiary, as the case may be, first commits to such Restricted Payment.
Appears in 2 contracts
Samples: Indenture (Concordia Investment Holdings (Jersey) LTD), Indenture (Concordia International Corp.)
Restricted Payments. Declare or makeThe Credit Parties shall not, and shall not permit any Subsidiary to, directly or indirectly, indirectly pay any Restricted Payment; provided, or incur any obligation (contingent or otherwise) to do sohowever, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each any Subsidiary may declare and make dividend payments pay Dividends to or other distributions payable solely in common Equity Interests for the benefit of such Person;
the Borrower or any Guarantor, and (cb) the Borrower may purchase(i) make regularly scheduled interest payments on Subordinated Debt, redeem(ii) make regularly scheduled interest payments on Additional Unsecured Senior Debt, retire(iii) subject to the proviso contained in clause (iv) below, defease or make other payments in respect declare and pay Dividends (including the repurchase of Capital Stock of the 2,598 shares Borrower), (iv) make regularly scheduled principal payments on Subordinated Debt in existence as of its Equity Interests or any warrantthe Effective Date; provided however, right or option to acquire such Equity Interests the sum of all Restricted Payments made pursuant to certain Stock Purchase Agreements clause (Restatediii) between the Borrower above, this clause (iv) and certain owners of Equity Interests, as in effect on the Closing Date;
clause (dv) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends below shall not exceed an aggregate amount equal to the ESOP with respect to the Borrower’s Class C Preferred Stock sum of (A) $35,000,000 plus (B) 50% of Cumulative Net Income after June 30, 2014, (v) make prepayments and additional contributions from the Borrower to the ESOP regularly scheduled principal payments on Additional Unsecured Senior Debt in an aggregate amount taken together with amounts under clause (A) of clause (iv) above, not to exceed $30,000,000 for 35,000,000, (vi) payments expressly contemplated by the Spin Transaction Documents, (vii) make prepayments on Additional Unsecured Senior Debt from the proceeds of any fiscal year Disposition of Assets on a pro rata basis with the prepayment of the BorrowerLoans as may be required under Section 2.6, provided in each case if and to the extent required by the agreements governing such Additional Unsecured Senior Debt and (viii) make a Special Dividend on the date the Senior Notes are issued; provided, that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may shall make other no Restricted Payments so long as under clause (ib)(i), clause (b)(iii) or clause (b)(iv) unless there shall exist no Default exists immediately or Event of Default prior and to or after giving effect thereto and (ii) upon giving effect to any such proposed Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 2 contracts
Samples: Credit Agreement (Enova International, Inc.), Credit Agreement (Cash America International Inc)
Restricted Payments. Declare The Company shall not, nor shall it permit any Subsidiary to, declare, make or make, directly or indirectly, pay any Restricted PaymentPayments, or incur any obligation (contingent or otherwise) to do so, except that:
other than (a) each Subsidiary may make permitted Restricted Payments to Persons that own Equity Interests in such Subsidiarylisted on Schedule 7.17, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party payments and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests prepayments of such Person;
debt permitted by Section 7.01(ii)(j), (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect and prepayments of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements Transaction Facilities (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Amendment No. 8 Closing Date;
); provided that (i) any voluntary prepayment under the Existing 2015 Term Loan Credit Agreement, any Note Purchase Agreement or, to the extent such prepayment results in a commitment reduction, this Agreement or the Existing Revolving Credit Agreement, shall be made together with voluntary prepayments of the other Transaction Facilities, on a pro rata basis by reference to the outstanding principal balances thereunder (and the Commitments shall be reduced by the amount of any such voluntary prepayment made under this Agreement) and (ii) the Company and its Subsidiaries shall not pay any make-whole amount to the Noteholders in connection with any prepayment of the NPA Notes upon the consummation of the Technology Disposition except in accordance with Section 6.19(b), and (d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease payments of dividends by any of its Equity Interests pursuant Subsidiary to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP Loan Parties ratably with respect to the Borrower’s Class C Preferred Stock and additional contributions from Equity Interests held by such Loan Parties. Notwithstanding the Borrower to foregoing, neither the ESOP in an aggregate amount not to exceed $30,000,000 for Company nor its Subsidiaries shall make any fiscal year of the Borrower, share repurchases; provided that within five Business Days for the avoidance of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest doubt any share repurchases or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect required to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case pay withholding tax liabilities of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered employees pursuant to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Company’s “Chicago Bridge & Iron 2008 Long-Term Incentive Plan, as Amended” in effect as of the Amendment No. 8 Closing Date shall be expressly permitted.
Appears in 2 contracts
Samples: Credit Agreement (Chicago Bridge & Iron Co N V), Credit Agreement (Chicago Bridge & Iron Co N V)
Restricted Payments. Declare or makeThe Company will not, directly or indirectlynor will it permit any of its Restricted Subsidiaries to, make any Restricted Payment, or incur Payment at any obligation (contingent or otherwise) to do sotime, except thatthat so long as at the time thereof and after giving effect thereto no Default shall have occurred and be continuing, the Company may:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests its Partners during any fiscal quarter 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends an amount equal to the ESOP with respect to Tax Payment Amount for the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any immediately preceding fiscal year of the Borrowerquarter, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately at least fifteen days prior and after giving effect thereto and (ii) upon giving effect to making any such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower Company shall have delivered to the Administrative Agent and the other Agents notification of the amount of the Restricted Payment to be made during such fiscal quarter and (ii) on or prior to April 12 of each fiscal year the Company shall have delivered to the Administrative Agent and the other Agents a Pro Forma Compliance Certificate with statement from the Company's independent certified public accountants setting forth a detailed calculation of the aggregate Tax Payment Amount for the prior fiscal year and showing the amount of each individual Restricted Payment made during such fiscal year and all prior Restricted Payments made pursuant to this Section 8.09;
(b) after the earlier of (i) December 31, 2001 or (ii) the date upon which the Debt Ratio shall have been less than 5.00 to 1 as at the last day of two or more consecutive fiscal quarters (except for periods after the Debt Ratio shall be greater than 5.00 to 1, unless the Debt Ratio shall again be less than 5.00 to 1 as at the last day of two or more consecutive fiscal quarters), the Company may make Restricted Payments in an amount necessary to enable FrontierVision Holdings and FrontierVision Holdings Capital Corporation to make payments in respect theretoof the Senior Discount Debt;
(c) make Restricted Payments to its Partners in cash to enable FrontierVision Holdings to pay out-of-pocket accounting fees, legal fees and the like in an aggregate amount not exceeding $200,000 during any fiscal year; and
(d) make Restricted Payments to its Partners in cash in an aggregate amount up to but not exceeding $25,000,000 during the term of this Agreement, provided that to the extent the aggregate amount of such Restricted Payments shall exceed $5,000,000, such Restricted Payment shall not be made unless the Debt Ratio as at the last day of the two most recent fiscal quarters shall have been less than 5.00 to 1, it being understood that the amount of Restricted Payments that may be made pursuant to any of the above clauses (a) through (d) shall be exclusive of the amount of Restricted Payments that may be made pursuant to any of the other of the above clauses (a) through (d). Nothing herein shall be deemed to prohibit the payment of dividends, distributions or other amounts by any Restricted Subsidiary of the Company to the Company or to any other Restricted Subsidiary of the Company.
Appears in 2 contracts
Samples: Credit Agreement (Frontiervision Capital Corp), Credit Agreement (Frontiervision Holdings Capital Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatthat the following shall be permitted:
(a) each Subsidiary of the Borrower may declare and make Restricted Payments ratably to Persons that own the holders of such Subsidiary’s Equity Interests 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) each Loan Party the REIT and each Subsidiary thereof may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) with respect to the fiscal year ending December 31, 2014, the Borrower may purchasemake Restricted Payments in cash in an aggregate amount equal to the amount required to be paid by the REIT to its equityholders in order for the REIT to (x) maintain its REIT Status and (y) avoid the payment of federal or state income or excise tax; provided, redeemhowever, retire, defease or make other payments in respect no Restricted Payments shall be permitted under this clause (c) following an acceleration of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Obligations pursuant to certain Stock Purchase Agreements Section 8.02 or following the occurrence of an Event of Default under Section 8.01(a), (Restatedf) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Dateor (g);
(d) no Default exists immediately prior with respect to the fiscal year ending December 31, 2015 and after giving effect theretoeach fiscal year thereafter, the Borrower may purchase, redeem, retire, defease any make Restricted Payments in cash in an aggregate amount equal to the greater of its (i) 95% of Funds From Operations for such fiscal year beginning with the first full fiscal year following the fiscal year during which one or more classes of the REIT’s Equity Interests are first listed publicly on a securities exchange and (ii) the amount of Restricted Payments required to be paid by the REIT to its equityholders in order for the REIT to (x) maintain its REIT Status and (y) avoid the payment of federal or state income or excise tax; provided, however, no Restricted Payments shall be permitted under this clause (d) following an acceleration of the Obligations pursuant to certain Restated Stock Transfer Restriction Agreements between Section 8.02 or following the Borrower and certain owners occurrence of Equity Interestsan Event of Default under Section 8.01(a), (f) or (g); orand
(e) the Borrower may pay quarterly cash dividends REIT shall be permitted to the ESOP make Restricted Payments with respect to the Borrower’s Class C Preferred Stock and additional contributions any amounts received by it from the Borrower pursuant to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(fSection 7.06(c) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto7.06(d).
Appears in 2 contracts
Samples: Credit Agreement (Paramount Group, Inc.), Credit Agreement (Paramount Group, Inc.)
Restricted Payments. Declare or makeBorrower will not, and will not permit any other Credit Party to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment, ; provided that the foregoing shall not restrict or incur any obligation (contingent or otherwise) to do so, except that:
prohibit (a) each dividends or distributions made by any Restricted Subsidiary, directly or indirectly, to Borrower or to any Restricted Subsidiary may make that is a Wholly-Owned Subsidiary of Borrower, (b) dividends declared and paid by Subsidiaries ratably with respect to their Capital Stock (or on a basis more favorable to Borrower and its Restricted Subsidiaries), (c) Restricted Payments pursuant to Persons and in accordance with stock option plans or other benefit plans for management or employees of Borrower and its Subsidiaries, (d) cash payments by Borrower in lieu of issuing fractional shares in an aggregate amount not exceeding $200,000 during the term of this Agreement, provided that own Equity Interests in no Default or Event of Default exists at the time of such Subsidiarypayment, ratably according to their respective holdings such payment will not cause a Default or Event of the type of Equity Interest Default and such payment is made only in respect of which such Borrower’s 8% Convertible Preferred Stock outstanding on the Closing Date, (e) distributions declared and paid by Borrower effecting “poison pill” rights plans provided that any securities or rights so distributed have a nominal fair market value at the time of declaration, (f) Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments Payments in respect of the 2,598 shares Senior Notes with any one or more of its Equity Interests or any warrant, right or option to acquire such Equity Interests the following: (i) Debt incurred pursuant to certain Stock Purchase Agreements Section 5.1(q), (Restatedii) between preferred or common equity interests or rights, warrants or options for such interests, (iii) cash proceeds of any of the Borrower and certain owners foregoing, (iv) up to $20,000,000 of Equity Intereststhe proceeds of any loans under the Delayed Draw Commitment (as defined in the First Lien Credit Agreement) under the First Lien Credit Agreement if, as in effect on at the Closing Date;
(d) no Default exists immediately prior time of application of such proceeds and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any Restricted Payments in respect of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between Senior Notes after the Borrower and certain owners date of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP this Agreement will result in an aggregate amount of Junior Lien Debt and unsecured Debt (including Senior Notes) outstanding that is not greater than $83,633,000 and (v) up to $7,000,000 in cash on hand if, at the time of application of such proceeds and after giving effect thereto, the Restricted Payments in respect of Senior Notes after the date of this Agreement will result in an aggregate amount of Junior Lien Debt and unsecured Debt (including Senior Notes) outstanding that is not greater than $54,361,450, (g) repayments of Debt from the proceeds of Debt constituting Refinancing Indebtedness and (h) other Restricted Payments in an amount not to exceed $30,000,000 1,000,000 in the aggregate. Borrower will not, and will not permit any other Credit Party to issue preferred Capital Stock providing for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in not permitted by this Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)5.4.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Warren Resources Inc)
Restricted Payments. Declare The Parent Guarantor and the Borrower will not, and will not permit any of the Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, return any capital to its holders of Equity Interests or incur make any obligation (contingent or otherwise) distribution of its Property to do soits Equity Interest holders without the prior approval of the Majority Lenders, except that:that:142
(ai) each of the Parent Guarantor, the Borrower and the Restricted Subsidiaries may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional Equity Interests (other than Disqualified Capital Stock),
(ii) any Restricted Subsidiary of the Parent Guarantor may declare and pay dividends ratably with respect to its Equity Interests,
(iii) the Parent Guarantor, the Borrower and the Restricted Subsidiaries may make Restricted Payments pursuant to Persons that own and in accordance with stock option plans or other benefit plans for management, employees, directors and consultants of the Parent Guarantor, the Borrower and their Subsidiaries,
(iv) the Parent Guarantor may declare and pay dividends consisting of Equity Interests 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;Unrestricted Subsidiaries,
(bv) each Loan Party and each Subsidiary any DrillCo that is an entity may declare and make dividend payments pay dividends or other distributions payable solely in common Equity Interests to DrillCo Parties as required by the terms of the agreements governing such Person;DrillCo, and143
(cvi) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower Parent Guarantor and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and if after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be Parent Guarantor’s ratio of Total Debt to EBITDAX (calculated in compliance accordance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis 9.01(a)) is equal to or less than 3.0 to 1.0 and (B) the Consolidated Net Leverage Ratio Borrower would have liquidity (as so calculated defined in Section 9.04(b)(i)(B)(II)) equal to or greater than 15% of the then effective Borrowing Base.144, and 141 Section 9.04 amended by First Amendment. 142 Amended by Sixth Amendment. 143 Added by Seventh Amendment. 144 Section 9.04(a) amended by Fifth Amendment and amended by Eighth Amendment.
(vii) the Parent Guarantor may pay dividends and distributions to the holders of its Equity Interests, if and to the extent that (A) such dividend or distribution is at least 0.25 less than paid within 75 days after the maximum then date of declaration thereof and (B) as of the date of such declaration, if such dividend or distribution had been paid as of such date of declaration, it would have been permitted under this Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto9.04(a).
Appears in 1 contract
Restricted Payments. Declare The Parent will not, and will not permit any of the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatas follows:
(a) each Subsidiary the Parent may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock).
(b) the Parent may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(ci) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares holders of its Equity Interests or any warrant, right or option Series A Preferred Units up to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower amount required by the Third Amended and certain owners of Equity Interests, Restated Limited Liability Company Agreement as in effect on the Closing Date;
date hereof and (dii) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any holders of its the Parent’s common Equity Interests up to the amount of Distributable Cash not required to be prepaid pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(eSection 3.04(c)(i) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making fiscal quarter in which such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments are accrued and paid, in each case of clauses (i) and (ii) so long as (i) no Default exists immediately prior or Event of Default has occurred and after giving effect thereto is continuing or would result therefrom, and (ii) upon after giving effect to such Restricted Payment, (A) the Loan Parties would be Parent is in compliance Pro Forma Compliance with the financial covenants contained in Section 9.01.
(c) Restricted Subsidiaries (other than the Borrower) may declare and pay dividends ratably with respect to their Equity Interests.
(d) any Restricted Subsidiary (other than the Borrower) may make Restricted Payments to the Borrower or any other Loan Party (other than the Parent).
(e) the Parent may make Restricted Payments pursuant to and in connection with stock option plans or other benefit plans or arrangements for directors, management, employees or consultants of the Parent and the Restricted Subsidiaries; provided that the amount of Restricted Payments in cash under this clause (e) shall not exceed $5,000,000 during any fiscal year.
(f) the Borrower and the other Restricted Subsidiaries may make Restricted Payments constituting purchases by the Borrower or any other Restricted Subsidiary of any other Restricted Subsidiary’s capital stock pursuant to a transaction expressly permitted by Section 9.05 (other than Sections 9.05(h), 9.05(i), 9.05(m), 9.05(n) and 9.05(r)).
(g) the Borrower may make Restricted Payments to the Parent to enable the Parent to make Restricted Payments permitted by Sections 9.04(b) and (e) so long as (i) the conditions to the Restricted Payments by the Parent set forth in Section 8.11 on a Pro Forma Basis 9.04(b) or (e), as applicable, have been satisfied and (Bii) the Consolidated Net Leverage Ratio proceeds of such Restricted Payments are promptly applied by the Parent to make Restricted Payments permitted by Sections 9.04(b) or (e), as so calculated is at least 0.25 less than applicable.
(h) the maximum then permitted Borrower may make dividends and other distributions to Parent for the purpose of paying (i) expenses consisting of audit, accounting and legal fees and expenses and other expenses required to maintain its corporate existence, and (ii) to pay any customary and reasonable general corporate operating and overhead costs and expenses; provided that in each case no Event of Default under Section 8.11(a10.01(a), (b), (g), (h) or (and, in the case of any Restricted Payment in excess of $10,000,000, i) has occurred and is continuing or will result therefrom.
(i) Parent may (and the Borrower shall have delivered may make dividends and distributions to Parent for the Administrative Agent a Pro Forma Compliance Certificate Parent to) make Restricted Payments that, together with respect theretoall other Restricted Payments made pursuant to this Section 9.04(i) and all Investments made pursuant to Section 9.05(r), do not exceed the aggregate amount of Declined Proceeds as of such time.
Appears in 1 contract
Restricted Payments. Declare Directly or makeindirectly declare, directly order, pay or indirectly, make any Restricted Payment, Payment or incur set aside any obligation (contingent sum or otherwise) to do so, property therefor except thatas follows:
(a) each The Subsidiary Guarantors may (A) pay dividends and make Restricted Payments distributions to Persons that own Equity Interests in such SubsidiaryBorrower and any other Subsidiary Guarantors (other than to the Existing Joint Venture or any other joint venture), ratably according (B) repay Indebtedness owed to their respective holdings of Borrower or any other Subsidiary Guarantor (other than to the type of Equity Interest in respect of which such Restricted Payment is being madeExisting Joint Venture or any other joint venture), and (C) make intercompany loans to Borrower or to any Subsidiary Guarantor (other than to the Existing Joint Venture or any other joint venture) if and as permitted under Section 7.2(b);
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option distributions to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends LifePoint Parent to the ESOP with respect extent necessary to pay its operating and administrative expenses incurred in the Borrower’s Class C Preferred Stock ordinary course of business, including, without limitation, payroll expenses, directors' fees, legal and additional contributions from the Borrower to the ESOP audit expenses, SEC compliance expenses and corporate franchise and federal, state and local income taxes, in an aggregate amount not to exceed $30,000,000 for 2,500,000 in any fiscal year year;
(c) Borrower may make distributions to LifePoint Parent to permit it to pay expenses incurred under the corporate integrity program referenced in the Distribution Agreement;
(d) Borrower may make distributions to LifePoint Parent to permit it to pay expenses incurred under the Transition Agreements;
(e) Borrower may make distributions to LifePoint Parent or the ESOP, or directly, to be used to repurchase, redeem, acquire or retire for value any Equity Interests of LifePoint Parent pursuant to any stockholder's agreement, management equity subscription plan or agreement, stock option plan or agreement or employee benefit plan as may be adopted by Borrower or LifePoint Parent from time to time in an aggregate amount not to exceed $2,000,000 in any fiscal year;
(f) Borrower may make distributions to LifePoint Parent to permit LifePoint Parent to make purchases permitted under Section 7.8(l);
(g) Borrower may make regularly scheduled payments (but not prepayments) of interest under the BorrowerHigh Yield Notes unless, provided that within five Business Days on the date of making any such proposed payment the Borrower receives a payment in cash from the ESOP as a payment or after giving effect thereto, an Event of principal, interest or other charges on Indebtedness of the ESOP to the BorrowerDefault shall have occurred and be continuing; and
(fh) Unless on the date of any such proposed redemption, repurchase or other acquisition (or, if earlier, on the date Borrower may make other Restricted Payments so long as becomes obligated to consummate such transaction) after giving effect thereto, an Event of Default shall have occurred and be continuing, Borrower shall (i) no Default exists immediately prior and after giving effect thereto be permitted to redeem, repurchase or otherwise acquire High Yield Notes from the proceeds of Indebtedness permitted pursuant to clause (g) of Section 7.2 or from proceeds (and/or in exchange for) any issuance of publicly traded common stock of LifePoint Parent for a period of 90 days following the incurrence of such Indebtedness or the issuance of such stock, and (ii) upon giving effect be permitted to such Restricted Paymentredeem, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case repurchase or otherwise acquire up to an additional $50,000,000 of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)High Yield Notes.
Appears in 1 contract
Samples: Credit Agreement (Lifepoint Hospitals Holdings Inc)
Restricted Payments. Declare or makeEach of the Credit Parties will not, nor will it permit any Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may to make Restricted Payments to Persons that own Equity Interests dividends payable solely in the same class of Capital Stock of such SubsidiaryPerson, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and to make dividend payments dividends or other distributions payable solely in common Equity Interests of such Person;
to any Credit Party or any Subsidiary (directly or indirectly through Subsidiaries), (c) the Borrower may purchase, redeem, retire, defease or make other to pay regularly scheduled interest payments in respect of the 2,598 shares of its Equity Interests or any warrantSenior Notes and the Senior Subordinated Notes, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to or Event of Default shall have occurred or be continuing or would result from any such Restricted Payment, (Aii) at the Loan time of each such Restricted Payment and after giving effect to each such Restricted Payment on a Pro Forma Basis, the Credit Parties would be are in compliance with the financial covenants set forth in Section 8.11 5.9(a)-(c), (iii) the Company shall have been in compliance, as of the most recent fiscal quarter end for which the Company has delivered a Compliance Certificate, with the Consolidated Interest Coverage Ratio, Consolidated Leverage Ratio and Consolidated Total Senior Debt to Borrowing Base Ratio levels required by Sections 5.9 for such fiscal quarter end, (iv) such Restricted Payment is permitted by the terms of the Senior Indenture, the Senior Subordinated Indenture and any other agreement or instrument governing or evidencing Indebtedness of the Credit Parties and their Subsidiaries and (iv) such Restricted Payments, together with the aggregate amount of all other Restricted Payments declared or made by the Credit Parties and their Subsidiaries on or after the Closing Date (excluding Restricted Payments permitted by subsections (a), (c) and (d) above), do not exceed the sum of (A) 50% of Consolidated Net Income for the period (taken as one accounting period) from the beginning of the fiscal quarter commencing after the Closing Date to the end of the most recent fiscal quarter of the Company for which the Administrative Agent has received financial statements pursuant to Section 5.1(a) or (b) (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit) plus (B) 50% of the aggregate Net Cash Proceeds received by the Credit Parties and their Subsidiaries from Equity Issuances after the Closing Date, and (e) other Restricted Payments so long as (i) no Default or Event of Default shall have occurred or be continuing or would result from any such Restricted Payment, (ii) at the time of each such Restricted Payment and after giving effect to each such Restricted Payment on a Pro Forma Basis Basis, the Credit Parties are in compliance with the financial covenants set forth in Section 5.9(a)-(c), (iii) the Company shall have been in compliance, as of the most recent fiscal quarter end for which the Company has delivered a Compliance Certificate, with the Consolidated Interest Coverage Ratio, Consolidated Leverage Ratio and Consolidated Total Senior Debt to Borrowing Base Ratio levels required by Sections 5.9(a)-(c) of the Existing Credit Agreement for such fiscal quarter end and (Biv) such Restricted Payments, together with the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than aggregate amount of all other Restricted Payments declared or made by the maximum then Credit Parties and their Subsidiaries on or after the Closing Date (excluding Restricted Payments permitted under Section 8.11(aby subsections (a), (c), (d) and (ande) above), in the case of any Restricted Payment in excess of do not exceed $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)35,000,000.
Appears in 1 contract
Samples: Credit Agreement (Alliance One International, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwiseotherwise (other than an obligation that is contingent on being permitted hereunder)) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments, so long as no Default shall exist or result therefrom and so long as (i) in the case of a Restricted Payment made in reliance on this clause (a)(i), the aggregate amount of all such Restricted Payments to Persons that own Equity Interests in such Subsidiaryduring the term of this Agreement shall not exceed, ratably according to their respective holdings at the time of the type of Equity Interest in respect of which such Restricted Payment is being madeand after giving effect to such Restricted Payment, the Restricted Payment Cap Amount; provided, however, that for purposes of calculating compliance under this clause (a)(i), any Restricted Payment made in reliance on this clause (a)(i) shall take into account all Restricted Payments made during the term of this Agreement in reliance on the following clause (a)(ii) in an amount equal to 50% of the aggregate amount of such Restricted Payments or (ii) in the case of a Restricted Payment made in reliance on this clause (a)(ii), upon giving effect on a Pro Forma Basis to such Restricted Payment, the Consolidated Secured Leverage Ratio shall be less than 2.0 to 1 as of the most recent Fiscal Quarter end for which financial statements have been delivered pursuant to Section 6.1 (Financial Statements), as certified by a Responsible Officer of the Borrower;
(b) each Loan Party the Borrower may repurchase Stock of the Borrower issued to employees and each Subsidiary may declare and make dividend payments directors of the Borrower in an amount necessary to satisfy such individual’s income tax withholding obligations relating to the vesting of any restricted stock grants that have been approved by the Borrower’s Board of Directors or other distributions payable solely in common Equity Interests of such Personthe appropriate committee thereof;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect repurchase Stock of the 2,598 shares Borrower issued to employees, directors or managers upon the death, disability or termination of its Equity Interests employment of such person or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners terms of Equity Interestsany subscription, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to stockholder or other agreement or plan approved by the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Board of Directors in an aggregate amount not to exceed (i) $30,000,000 for 500,000 in any fiscal year Fiscal Year or (ii) $2,000,000 during the term of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerthis Agreement; and
(fd) the following shall be permitted with respect to the Convertible Notes and Subordinated Indebtedness:
(i) regularly scheduled payments of (x) principal and interest with respect to the Convertible Notes and (y) interest with respect to Subordinated Indebtedness;
(ii) the repurchase of all or any portion of the Convertible Notes with the net cash proceeds of any public offering of the Borrower’s common stock; Credit Agreement Orbital Sciences Corporation
(iii) the repurchase, refinancing or replacement of the Convertible Notes or of the Subordinated Indebtedness with any other unsecured Indebtedness which satisfies the requirements of Section 8.3(j)(Indebtedness);
(iv) payments made solely in common stock of the Borrower may make other Restricted Payments in connection with the exercise of any conversion rights by the holders of the Convertible Notes or, if applicable, any such rights with respect to Subordinated Indebtedness; and
(v) the conversion into cash of the outstanding principal amount of any Convertible Notes as required by the terms of the Convertible Note Documents, so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer demonstrating that, upon giving effect to such Restricted Paymentconversion on a Pro Forma Basis, (A) the Loan Parties would be in compliance with the financial covenants set forth in Article V (Financial Covenants) as of the most recent Fiscal Quarter end for which the Borrower has delivered financial statements pursuant to Section 8.11 on a Pro Forma Basis and 6.1(a) or (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(ab) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect theretoFinancial Statements).
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make any Restricted Payments, except that if no Default or make, directly or indirectly, any Event of Default has occurred both before and after giving effect to the making of such Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Restricted Subsidiaries may make Restricted Payments to Persons that own Equity Interests in such Subsidiarythe Borrower, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each to the extent permitted under the Second Lien Credit Agreement and the Third Lien Loan Party and each Subsidiary Documents, the Borrower may declare and make dividend payments or other distributions payable solely Restricted Payments to its Equity Interest holders in common an amount equal to the income tax liabilities of such Person attributable to the earnings of the Borrower, (c) in addition to the foregoing permitted distribution for tax liabilities, the Borrower may make Restricted Payments to AMIH on account of Equity Interests for purposes of AMIH paying interest it owes under the Highbridge Note Purchase Agreement so long as (i) the aggregate amount of all such Person;
Restricted Payments under this clause (c) shall not to exceed the aggregate amount of cash contribution made by AMIH to Borrower on account of Equity Interests since the Amendment No. 7 Effective Date, (ii) before and after giving effect to such Restricted Payment, Availability is equal to or greater than 20% of the Borrowing Base then in effect, and (iii) such Restricted Payments are permitted under the Second Lien Credit Agreement and the Third Lien Loan Documents and (d) the Borrower may purchase, redeem, retire, defease or make other payments Restricted Payments to the Xxxxx Entities (as defined in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Agreement Regarding Special Distributions) pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Agreement Regarding Special Distributions in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and516,487.99.
(f) Section 6.17 (Current Ratio) of the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be Credit Agreement is hereby amended by replacing it in compliance its entirety with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).following:
Appears in 1 contract
Restricted Payments. Declare The Borrower will not declare or make, directly or indirectlypermit any Subsidiary of the Borrower to declare or make, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(ai) each Subsidiary may make Restricted Payments regular, scheduled or mandatory payments or prepayments of principal and interest on Debt for Borrowed Money (but as to Persons that own Equity Interests in payments, if any, of principal of and interest on Senior Subordinated Notes, only regularly scheduled payments thereof to the extent such Subsidiarypayments are permitted, ratably according to their respective holdings if at all, under the subordination provisions of the type of Equity Interest in respect of which documents governing such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, Debt as in effect on the Closing Datedate of execution thereof or as amended with the prior written consent of the Required Banks);
(dii) no so long as there shall not exist a Default exists immediately prior and after giving effect theretoor Event of Default, the payment by the Borrower may purchase, redeem, retire, defease any of its Equity Interests cash in lieu of shares of capital stock of the Borrower upon the exercise of stock options pursuant to certain Restated and in accordance with the 1988 Payless Cashways, Inc. Employee Stock Transfer Restriction Agreements between Plan, the 1992 Payless Cashways Incentive Stock Program and the Payless Cashways Director Option Plan in each case as in effect on the date hereof or as amended, modified or supplemented from time to time, provided, that the aggregate cash paid by the Borrower and certain owners in lieu of Equity Interests; orshares of capital stock of the Borrower as permitted by this clause (ii) shall not exceed $2,000,000 subsequent to November 18, 1994;
(eiii) transactions with Affiliates as expressly permitted under Section 8.15;
(iv) payments to the Borrower may pay quarterly cash dividends by a Subsidiary or payments to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from a Subsidiary by the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for on account of Debt permitted under Section 8.8(v); and
(v) additional Restricted Payments made during any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to commencing with the Borrower's 1995 fiscal year; and
(f) the Borrower provided, that such payments may make other Restricted Payments be made only so long as the Borrower maintains investment grade status from either S&P or Moxxx'x; provided, further, that the amount of such Restricted Payments made during any such fiscal year, when added to (i) no Default exists immediately prior and after giving effect thereto the amount of Minority Investments made during such fiscal year pursuant to Section 8.9(ix) and (ii) upon giving effect the amount of capital expenditures made and capital lease obligations incurred during such fiscal year pursuant to the first proviso to Section 8.12 (namely, those that would not have been permitted during such Restricted Paymentfiscal year but for the operation of said proviso), (A) shall not exceed Excess Cash Flow for the Loan Parties would be in compliance with previous fiscal year of the financial covenants set forth in Section 8.11 Borrower calculated on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (andcumulative basis, such that any amounts authorized by this proviso, but not actually utilized in the case of any Restricted Payment in excess of $10,000,000year authorized, may be carried forward to succeeding fiscal years; and provided, finally, that, notwithstanding the foregoing proviso, the Borrower shall have delivered aggregate amount of such payments made during any one fiscal year, when added to the Administrative Agent a Pro Forma Compliance Certificate with respect theretoaggregate amount of Minority Investments made during such fiscal year pursuant to Section 8.9(ix), shall not exceed $5,000,000.
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not, nor shall Parent or makeany Subsidiary to, directly declare or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that:
(a) (i) Parent may declare or make cash distributions to its equity holders in an aggregate amount not to exceed the greater of (x) ninety-five percent (95%) of Parent’s Adjusted FFO for each Fiscal Quarter ending thereafter, or (y) the amount necessary for Parent to be able to make distributions required to maintain its status as a REIT and to avoid the imposition of any federal or state income tax, and to avoid the imposition of the excise tax described by Section 4981 of the Code, in each case on Parent; provided further that, in either case, (A) during the continuance of an Event of Default, Restricted Payments made pursuant to clause (a) shall not exceed the amounts described in clause (y), and (B) following a Bankruptcy Event with respect to the Borrower or the acceleration of the Obligations, Parent shall not make any cash distributions;
(b) the Borrower may make Restricted Payments ratably to the holders of its Equity Interests to permit Parent to make the Restricted Payments permitted under clause (a) above;
(c) each Subsidiary may make Restricted Payments ratably to Persons that own the holders of its Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeInterests;
(bd) each Loan Party and each Subsidiary Parent, the Borrower or any Guarantor may declare and make dividend payments or other distributions payable solely in the common Equity Interests equity interests or other equity interests of such Person;
entity including (ci) the Borrower may purchase“cashless exercises” of options granted under any share option plan adopted by such entity, redeem, retire, defease (ii) distributions of rights or make other payments equity securities under any rights plan adopted by such entity and (iii) distributions (or effect stock splits or reverse stock splits) with respect to its equity interests payable solely in respect of the 2,598 additional shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Dateequity interests;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) Parent, the Borrower and each Guarantor may pay quarterly make cash payments in lieu of the issuance of fractional shares representing insignificant interests in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of Parent, the Borrower or any Subsidiary;
(f) so long as no Change of Control results therefrom, Parent, the Borrower and each Subsidiary may make Restricted Payments in connection with the implementation of or pursuant to any retirement, health, stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of compensation;
(g) so long as no Change of Control results therefrom, the Borrower and each Subsidiary that is a Guarantor may make dividends or distributions to allow Parent to make payments in connection with share purchase programs, to the ESOP with respect to extent not otherwise prohibited by the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year terms of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerthis Agreement; and
(fh) the Borrower Parent may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect exercise any redemption or conversion rights with respect to such Restricted Payment, (A) the Loan Parties would be its Equity Interests in compliance accordance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) terms of the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of governing documents setting out any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)such rights.
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiaryadditional shares of its common stock, (b) (i) wholly-owned Subsidiaries may declare and pay dividends ratably according with respect to their respective holdings Equity Interests and (ii) Subsidiaries which are not wholly-owned may declare and pay dividends ratably with respect to their Equity Interests so long as no Default or Event of the type of Equity Interest in respect of which Default has occurred and is continuing prior to making such Restricted Payment is being made;
or would arise after giving effect (bincluding giving effect on a Pro Forma Basis) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
thereto, (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interestsits Subsidiaries, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may declare and pay quarterly cash dividends to the ESOP with respect to taxes ratably allocated by UGI Corporation to the Borrower’s Class C Preferred Stock and additional contributions from business of the Borrower and its Subsidiaries, (e) distributions of property by a Subsidiary to the ESOP Borrower in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrowerconnection with a transaction permitted by Section 6.04(h), provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
and (f) the Borrower and its Subsidiaries may make any other Restricted Payments Payment so long as (i) no Default exists immediately or Event of Default has occurred and is continuing prior and to making such Restricted Payment or would arise after giving effect (including giving effect on a Pro Forma Basis) thereto and (ii) upon the aggregate amount of Restricted Payments under this clause (f) shall not exceed, during any four (4) consecutive fiscal quarters, $25,000,000 plus 50% of the Consolidated Net Income for such four (4) consecutive fiscal quarters unless (x) the Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower immediately prior to the date such Restricted Payment is made was no greater than 3.00 to 1.0 and (y) the Leverage Ratio is no greater than 3.00 to 1.0 calculated on a Pro Forma Basis giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Restricted Payments. Declare or make, directly or indirectly, Make any Restricted Payment, Payment or incur apply or set ------------------- apart any obligation (contingent of their assets therefor or otherwise) agree to do soany of the foregoing; provided, except thathowever, the Borrower may make the following Restricted Payments in -------- any Fiscal Year (on a non-cumulative basis, with the effect that amounts not paid in any Fiscal Year may not be carried over for payment in a subsequent period) if immediately prior to and immediately after giving effect thereto no Default or Event of Default shall exist or occur and be continuing:
(a) each Subsidiary may make Restricted Payments cash payments or dividends to Persons that own Equity Interests in such Subsidiaryor on behalf of FLS for (i) reimbursement of tax obligations not otherwise paid by the Borrower, ratably according and (ii) holding company expenses not to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeexceed $100,000;
(b) each Loan Party and each Subsidiary may declare and make dividend payments without duplication of Section 8.5(f), the refinancing or other distributions payable solely -------------- restructuring of up to $15,000,000 of the principal amount of the Subordinated Intercompany Note; provided, however, that any Indebtedness resulting from such refinancing or restructuring (i) is subordinate to the Obligations under subordination terms substantially similar to those contained in common Equity Interests of such Personthe Subordinated Intercompany Note, (ii) is in an aggregate principal amount not greater than the amount being refinanced or restructured, and (iii) includes scheduled principal payments in an amount not to exceed $3,500,000 in any Fiscal Year;
(c) sales and other transfers of assets from the Borrower may purchase, redeem, retire, defease or make a Guarantor to the Borrower or a Guarantor (including without limitation the sale or other payments in respect transfer of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) receivables between the Borrower and certain owners AFI); provided that in no event may the Borrower transfer any asset which would constitute Collateral upon the occurrence of Equity Interests, as in effect on the Closing Date;a Security Event; and
(d) no Default exists immediately prior and other Restricted Payments not otherwise covered by clauses (a) through (c) above made after giving effect thereto, the Borrower may purchase, redeem, retire, defease any Closing Date not in excess of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners sum of Equity Interests; or
(ei) fifty percent (50%) of the Borrower may pay quarterly cash dividends to Consolidated Net Income during the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions period (taken as one accounting period) from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year first day of the Borrower's fiscal quarter ending on June 30, provided that within five Business Days of making such payment 1998 to the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness last day of the ESOP to Borrower's most recently ended fiscal quarter for which internal financial statements are available at the Borrowertime of such proposed Restricted Payment (or, if such aggregate Consolidated Net Income is a loss, minus 100% of such amount); and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, twenty-five percent (A25%) of the Loan Parties would be in compliance with aggregate Net Proceeds received by the financial covenants set forth in Section 8.11 on a Pro Forma Basis Borrower after the Closing Date from any Equity Offering; and (Biii) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 1 contract
Restricted Payments. Declare or makemake any Restricted Payment, or permit any of its Subsidiaries so to do, except as follows:
(a) PRIOR TO THE EXISTING ARCH SENIOR NOTE TERMINATION DATE. Prior to the Existing Arch Senior Note Termination Date, whether or not any of the Parent Discount Notes are outstanding or the Existing Discount Indenture is in effect, the following Restricted Payments shall be permitted:
(i) any Subsidiary of Arch may, directly or indirectly, make Restricted Payments to Arch or any Restricted Paymentof its Subsidiaries (other than Xxxxxx Investments until such time as Xxxxxx Investments ceases to be an Unrestricted Subsidiary under and as defined in the Existing Arch Senior Indentures, or incur any obligation (contingent or otherwise) has become a Subsidiary Guarantor and has granted a security interest to do so, except that:the Collateral Agent in its assets); and
(aii) each Subsidiary Arch and its Subsidiaries may make Restricted Payments to Persons that own Equity Interests the Parent for purposes of enabling the Parent, as a consolidated taxpayer to pay Taxes, pursuant to the terms set forth in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeTax Sharing Agreement;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(ciii) the Borrower and its Subsidiaries may purchase, redeem, retire, defease pay Management Fees to Arch in any fiscal quarter (in an aggregate amount not exceeding 1 1/2% oF the net revenue of Arch and its Subsidiaries for the immediately preceding four fiscal quarters ending with the latest fiscal quarter for which Arch has filed a quarterly report with the SEC on form 10-Q or make other payments an annual report on form 10-K) in respect of accordance with the 2,598 shares terms set forth in the Management Agreement for services rendered to the Borrower or any of its Equity Interests or any warrantSubsidiaries, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements provided that (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(di) no Default exists immediately prior or Event of Default has occurred or is continuing (provided that during the continuance of a Default or an Event of Default, the Management Fee may be accrued, but not paid) and (ii) any such Management Fee accrued or paid shall be treated as an operating expense and deducted from the calculation of Operating Cash Flow; and
(iv) provided that no Default or Event of Default shall exist both before and after giving effect thereto, after the Borrower may purchase, redeem, retire, defease any of its Equity Interests has delivered financial statements pursuant to certain Restated Stock Transfer Restriction Agreements between Section 7.1(a) or (b) that demonstrate that the Borrower Total Leverage Ratio has been less than 3.00:1:00 for the immediately preceding two consecutive fiscal quarters, and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest Total Leverage Ratio would not be greater than or other charges on Indebtedness of the ESOP equal to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and 3.00:1.00 after giving effect thereto and (ii) upon giving effect to such Restricted Paymentthereto, (A) Arch may make any Restricted Payments to the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis Parent, and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of Parent may make any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered Payments to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)its shareholders.
Appears in 1 contract
Samples: Credit Agreement (Arch Communications Group Inc /De/)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiaryadditional shares of its common stock, (b) (i) wholly-owned Subsidiaries may declare and pay dividends ratably according with respect to their respective holdings Equity Interests and (ii) Subsidiaries which are not wholly-owned may declare and pay dividends ratably with respect to their Equity Interests so long as no Default or Event of the type of Equity Interest in respect of which Default has occurred and is continuing prior to making such Restricted Payment is being made;
or would arise after giving effect (bincluding giving effect on a pro forma basis) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
thereto, (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interestsits Subsidiaries, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may declare and pay quarterly cash dividends to the ESOP with respect to taxes ratably allocated by UGI Corporation to the Borrower’s Class C Preferred Stock and additional contributions from business of the Borrower and its Subsidiaries, (e) distributions of property by a Subsidiary to the ESOP Borrower in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrowerconnection with a transaction permitted by Section 6.04(h), provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower and its Subsidiaries may make any other Restricted Payments Payment so long as (i) no Default exists immediately or Event of Default has occurred and is continuing prior and to making such Restricted Payment or would arise after giving effect (including giving effect on a pro forma basis) thereto and (ii) upon the aggregate amount of Restricted Payments under this clause and (f) shall not exceed, during any four (4) consecutive fiscal quarters, $25,000,000 plus 50% of the Consolidated Net Income for such four (4) consecutive fiscal quarters unless (x) the Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower immediately prior to the date such Restricted Payment is made was no greater than 3.50 to 1.0 and (y) the Leverage Ratio is no greater than 3.50 to 1.0 calculated on a pro forma basis giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided that, except thateach Subsidiary may make Restricted Payments to the Borrower and any Guarantors, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; and provided, further, that so long as (i) immediately prior to each such Restricted Payment and after giving effect thereto, no Default shall have occurred and be continuing, (ii) immediately before giving effect to such Restricted Payment and after giving effect to any other Restricted Payments made since the end of the most recently ended period of four consecutive fiscal quarters of the Borrower for which financial statements are available (and all Indebtedness incurred to finance any such Restricted Payments), the Borrower and its Subsidiaries shall have a pro forma Consolidated Fixed Charge Coverage Ratio of at least the minimum Consolidated Fixed Charge Coverage Ratio required by Section 7.11(a) at such time plus 0.50, as determined on the basis of the financial information for such period of four consecutive fiscal quarters of the Borrower as though such Restricted Payments had been made as of the last day of such period, (iii) immediately after giving effect to such Restricted Payment and after giving effect to any other Restricted Payments made since the end of the most recently ended period of four consecutive fiscal quarters of the Borrower for which financial statements are available (and all Indebtedness incurred to finance any such Restricted Payments), the Borrower and its Subsidiaries shall have a pro forma Consolidated Fixed Charge Coverage Ratio of at least the minimum Consolidated Fixed Charge Coverage Ratio required by Section 7.11(a) at such time, as determined on the basis of the financial information for such period of four consecutive fiscal quarters of the Borrower as though such Restricted Payments had been made as of the last day of such period, and (iv) after giving effect to such proposed Restricted Payments, the Borrower shall have minimum availability under the Aggregate Commitments in an amount of at least 25% of the Aggregate Commitments available to the Borrower immediately prior to such proposed Restricted Payments, then:
(a) each Subsidiary may make Restricted Payments to Persons any other Person that own owns an Equity Interests 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) each Loan Party 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, retire, defease redeem or make other payments in respect otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of the 2,598 new shares of its Equity Interests common stock or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of other common Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(fd) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Paymentconstituting the repurchase of Equity Interests, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent extent deemed to occur upon the exercise of warrants, stock options or similar instruments if the Equity Interests represent a Pro Forma Compliance Certificate with respect thereto)portion of the exercise price thereof.
Appears in 1 contract
Samples: Credit Agreement (Power One Inc)
Restricted Payments. Declare or make, directly or indirectly, No Credit Party shall make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(a) each Subsidiary may make Restricted Payments intercompany loans and advances between Credit Parties to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeextent permitted under SECTION 6.3;
(b) each Loan Party dividends and each Subsidiary may declare and make dividend payments distributions (i) by Subsidiaries of any Borrower paid to such Borrower, or other distributions payable solely (ii) by Parent paid in common Equity Interests the form of such Personcapital Stock;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Dateemployee loans permitted under SECTION 6.4(b);
(d) no Default exists immediately prior payments of principal and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any interest of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; orIntercompany Notes issued in accordance with SECTION 6.3;
(e) except as otherwise expressly set forth in SECTION 6.17(e):
(i) beginning after the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal one year anniversary of the BorrowerClosing Date, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior or Event of Default has occurred and is continuing or would result from any such proposed payment, (ii) Borrowers and US Borrowers have aggregate Liquidity of at least US$15,000,000 (on a pro forma basis, with trade payables being paid currently, and CREDIT AGREEMENT expenses and liabilities being paid in the ordinary course of business, and without acceleration of sales) after giving effect thereto to any such proposed payment, and (iii) Details and its Subsidiaries have a Fixed Charge Coverage Ratio (as certified by Details' chief financial officer) for the 12-month period ending at the end of the Fiscal Quarter ending immediately preceding the date such payment is proposed to be made of at least 1.5:1.0 after giving effect to such proposed payment as if it had been made during such Fiscal Quarter, then Borrowers and US Borrowers may make distributions to Parent in order for Parent to make payments of dividends on the Series B Preferred Stock in an aggregate amount not to exceed the accrued amounts due on the Series B Preferred Stock during any Fiscal Quarter pursuant to Section 1 of the Series B Certificate of Designation, and
(ii) Parent may make payments of dividends on the Series B Preferred Stock in an aggregate amount not to exceed the accrued amounts due on the Series B Preferred Stock during any Fiscal Quarter pursuant to Section 1of the Series B Certificate of Designation;
(i) except as otherwise expressly set forth in SECTION 6.17(c) so long as (i) no Default or Event of Default has occurred and is continuing or would result from any such proposed payment, (ii) Borrowers and US Borrowers have aggregate Liquidity of at least US$15,000,000 (on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business, and without acceleration of sales) after giving effect to any such proposed payment, and (iii) Details and its Subsidiaries have a Fixed Charge Coverage Ratio (as certified by Details' chief financial officer) for the 12-month period (or such shorter period, as appropriate, as is tested during the first 12 months following the Closing Date) ending at the end of the Fiscal Quarter ending immediately preceding the date such payment is proposed to be made of at least 1.5:1.0 after giving effect to such proposed payment as if it had been made during such Fiscal Quarter, then Borrowers and US Borrowers may make distributions to DDi Capital Corp. in order for DDi Capital Corp. to make, and DDi Capital Corp. may make, payments of interest on the Senior Accreting Notes in an aggregate amount not to exceed US$660,000 in any Fiscal Quarter;
(ii) so long as (i) no Default or Event of Default has occurred and is continuing or would result from any such proposed payment, and (ii) Borrowers and US Borrowers have aggregate Liquidity of at least US$15,000,000 (on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business, and without acceleration of sales) after giving effect to any such proposed payment, then Borrowers may make distributions to DDi Capital Corp. in order for DDi Capital Corp. to make, and DDi Capital Corp. may make, the Senior Accreting Notes Interest Payment;
(g) Parent may declare and pay dividends with respect to (i) its capital stock payable solely in additional shares of its capital stock, and (ii) its Series A Preferred Stock payable solely from the proceeds of (A) dividends and distributions received from its Subsidiary, DDi Europe Limited, and (B) any disposition of the capital Stock of DDi Europe Limited;
(h) except as otherwise expressly set forth in SECTION 6.17(d), Parent may purchase, redeem or otherwise acquire any Series B Preferred Stock (together with accrued and unpaid dividends thereon) pursuant to Sections 5A (mandatory redemptions), 5B (optional CREDIT AGREEMENT redemption of holder), and 5D (redemption upon a change of control) of the Series B Preferred Certificate of Designation;
(i) so long as (i) no Default or Event of Default has occurred and is continuing or would result from any such proposed payment, (ii) Borrowers and US Borrowers have aggregate Liquidity of at least US$15,000,000 (on a pro forma basis, with trade payables being paid currently, and expenses and liabilities being paid in the ordinary course of business, and without acceleration of sales) after giving effect to any such proposed payment, and (iii) Details and its Subsidiaries have a Fixed Charge Coverage Ratio (as certified by Details' chief financial officer) for the 12-month period ending at the end of the Fiscal Quarter ending immediately preceding the date such payment is proposed to be made of at least 1.50:1.0 after giving effect to such proposed payment as if it had been made during such Fiscal Quarter, then Borrower Representative may advance monies to Parent for the purpose of making the Restricted PaymentPayment permitted in SECTION 6.13(h);
(j) so long as no Event of Default has occurred and is continuing, any Credit Party organized outside of the United States may make quarterly distributions in the amount necessary for any United States Shareholder (A) the Loan Parties would be in compliance with the financial covenants set forth as defined in Section 8.11 951(b) of the IRC) to pay any United States tax on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted any amounts included under Section 8.11(a951 of the IRC, after taking into account any available foreign tax credits; and
(k) (and, payments to any other Credit Party for directors' fees and the reimbursement of legal and accounting expenses incurred in the case ordinary course of business in an aggregate amount not to exceed US$500,000 or the Equivalent Amount in Canadian Dollars in any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) otherwise to do so, so except that:
(a) each Subsidiary any Consolidated Party may declare and pay dividends and distributions payable solely in common stock or other common Equity Interests of such Consolidated Party;
(b) any Consolidated Party may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or any other distributions payable solely in common Equity Interests of such PersonConsolidated Borrower Party;
(c) at any time that no Event of Default has occurred and is continuing or would result therefrom, any Consolidated Party may make Restricted Payments directly or indirectly (through another Consolidated Party) to Holdings in the Borrower may purchaseaggregate amount of, redeemand Holdings shall use the proceeds of such Restricted Payments to pay, retireactual advisory, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests monitoring and management fees pursuant to certain Stock Purchase Agreements (RestatedHoldings' Organization Documents, and administrative and other miscellaneous expenses incurred by Holdings in the ordinary course in accordance with Section 7.13(b) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for 2,000,000 during any fiscal year of Holdings (in the Borrowercase of the fiscal year of Holdings ending December 31, provided 2004, such annual amount permitted hereunder shall be reduced by the amount of any such payments made during such fiscal year but prior to the Closing Date);
(i) the Consolidated Borrower Parties may make Restricted Payments, directly or indirectly through other Consolidated Parties, to any other Consolidated Borrower Party for the purpose of paying Taxes owed by such Consolidated Borrower Party, excluding for this purpose any Taxes attributable to the income of Unrestricted Subsidiaries;
(ii) the Restricted Subsidiaries of Southwest II may make Restricted Payments, directly or indirectly through other Consolidated Parties, to Southwest II in an amount not to exceed, and to be used solely for the immediate payment of, any actual Taxes (including estimated Taxes but not any other anticipated Taxes) of Southwest II and all members of the consolidated group including Southwest II for such period that within five Business Days are due and payable to any taxing authority, excluding for this purpose any Taxes attributable to the income of making Unrestricted Subsidiaries;
(iii) Southwest II and its Restricted Subsidiaries may make Restricted Payments, directly or indirectly through other Consolidated Parties, to the Surviving Parent (on or after any date on which it becomes a Loan Party) in an amount not to exceed, and to be used solely for the immediate payment of, any actual Taxes (including estimated Taxes but not any other anticipated Taxes) of Surviving Parent and all members of the consolidated group including the Surviving Parent for such period that are due and payable to any taxing authority, excluding for this purpose any Taxes attributable to the income of (A) any Restricted Subsidiary of the Surviving Parent other than Southwest II and its Restricted Subsidiaries and (B) Unrestricted Subsidiaries;
(iv) during any tax period prior to, or in which occurs, a Permitted Restructuring Transaction, Holdings, Southwest and its Restricted Subsidiaries may make Restricted Payments, directly or indirectly through other Consolidated Parties, to Holdings or Southwest's or Holding's members for the purposes of paying Taxes in an amount not to exceed a notional amount for such period equal to the product of (A) the net taxable income of Southwest and its Restricted Subsidiaries for such period, reduced by net operating losses of Southwest and its Restricted Subsidiaries in excess of taxable income for all prior periods, assuming that since its inception Southwest's sole assets were and are the Equity Interests in Enterprises and its Restricted Subsidiaries and Southwest had realized no tax items other than through Enterprises and its Restricted Subsidiaries, multiplied by (B) an assumed tax rate for such purposes equal to the highest combined federal, state and local income tax rate applicable to a resident of New York City at the time of the applicable tax period (assuming the full deductibility for U.S. federal income tax purposes of any state and local income taxes), excluding for this purpose any Taxes on income that is attributable to Unrestricted Subsidiaries;
(v) during any tax period after a Permitted Restructuring Transaction, Southwest and its Restricted Subsidiaries may make Restricted Payments, directly or indirectly through other Consolidated Parties, to the Surviving Parent (on or after any date on which it becomes a Loan Party) in an amount not to exceed, and to be used solely for the immediate payment of, any actual Taxes (including estimated Taxes but not any other anticipated Taxes) of Surviving Parent and all members of the consolidated group including the Surviving Parent for such period that are due and payable to any taxing authority, excluding for this purpose any Taxes on income that is attributable to or allocable from (A) any Restricted Subsidiary of the Surviving Parent other than Southwest and its Restricted Subsidiaries and (B) Unrestricted Subsidiaries; and
(vi) during any tax year, the Consolidated Borrower receives Parties may make Restricted Payments, directly or indirectly through other Consolidated Parties, to each Restricted Subsidiary of the Surviving Parent, in an amount not to exceed, and to be used solely for the immediate payment of, any actual state and local Taxes of such Restricted Subsidiary, excluding for this purpose any Taxes attributable to any Unrestricted Subsidiary, only if the Loan Parties would not be permitted to make such a Restricted Payment to fund the payment of such Taxes pursuant to clause (ii), (iii), (iv) or (v) above; provided, however, that no Restricted Payment pursuant to this Section 7.06(d)(ii), (iii), (iv) or (v) may be paid by any Consolidated Borrower Party until 5 days after receipt by the Senior Subordinated Administrative Agent of a certificate of a Responsible Officer of the Loan Party Representative in cash from form and substance reasonably acceptable to the ESOP Senior Subordinated Administrative Agent demonstrating compliance with the foregoing provisions (such payments, "Permitted Tax Dividends");
(e) the Consolidated Parties may make the Restricted Payments on the Closing Date as a payment of principal, interest or other charges on Indebtedness part of the ESOP Transaction in an amount not to exceed the Borroweramount specified in the definition thereof; and
(f) at any time that no Event of Default has occurred and is continuing or would result, Holdings and its Restricted Subsidiaries may purchase, redeem or otherwise acquire or retire Equity Interests held by current or former employees in an aggregate amount not to exceed $15,000,000 during the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case term of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)this Agreement.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Valor Communications Group Inc)
Restricted Payments. Declare The Borrower shall not, and shall not permit any other Loan Party to declare, order, pay, make or make, directly or indirectly, set apart any sum for any Restricted Payment, or incur any obligation (contingent or otherwise) except Restricted Payments referred to do so, except thatbelow:
(ai) each Subsidiary the Loan Parties may, (x) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing, make regularly scheduled or required payments of interest in respect of any Permitted Subordinated Indebtedness of the Loan Parties in accordance with the terms of, and only to the extent required by the agreement pursuant to which such Permitted Subordinated Indebtedness was issued and (y) make payments of interest as and when due and payable (by capitalizing such interest, or, so long as no Potential Event of Default or Event of Default shall have occurred and be continuing, in cash) pursuant to the terms of the Shareholder Subordinated Indebtedness;
(ii) Restricted Subsidiaries may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Borrower or other Restricted Payment is being madeSubsidiaries;
(biii) each Loan Party and each Subsidiary may declare and make dividend to the extent such payments or other distributions payable solely in common Equity Interests of such Person;
(c) would be restricted payments, the Borrower may purchase, redeem, retire, defease make regularly scheduled or make other required payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Macau SAR pursuant to certain Stock Purchase Agreements (Restated) between any Land Concession Contract in accordance with the Borrower and certain owners of Equity Interests, terms thereof as such are in effect on the Closing DateDate or as amended pursuant to the terms hereof;
(div) so long as no Potential Event of Default exists immediately prior or Event of Default shall have occurred and be continuing, at any time after giving effect theretothe earlier of (x) the date of the initial principal payment due under subsection 2.4A and (y) the Trigger Date, the Borrower may purchase, redeem, retire, defease any pay dividends in respect of its Equity Interests pursuant common stock (a) in an amount up to certain Restated Stock Transfer Restriction Agreements between $150,000,000 in the Borrower aggregate for the period of the four consecutive Fiscal Quarters then ended in the Fiscal Quarter in which such dividend is made if, after giving effect to such payment, the Consolidated Leverage Ratio is less than or equal to 3.0 to 1.0 but greater than 2.5 to 1.0, and certain owners (b) in an amount up to $250,000,000 in the aggregate for the period of Equity Interests; orthe four consecutive Fiscal Quarters then ended in the Fiscal Quarter in which such dividend is made if, after giving effect to such payment, the Consolidated Leverage Ratio is less than or equal to 2.5 to 1.0;
(ev) the Borrower may pay quarterly cash dividends reimburse its Affiliates for any payments of Project Costs (and other expenses of the Restricted Subsidiaries) or deposits into Accounts made by such Affiliates in accordance with Sections 2.2.5 and 3.2 of the Depository Agreement, subject to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year conditions of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; andreimbursements set forth therein;
(fvi) the Borrower may make other any payments to the Company it is required to make pursuant to the terms of the Gaming Facilities Agreement to the extent that such payments constitute Restricted Payments so long as Payments;
(ivii) no Default exists immediately prior and in connection with any Specified Equity Contribution, the Borrower may make a Restricted Payment within five Business Days after giving effect thereto and (ii) upon giving effect delivery of financial statements for any Fiscal Quarter or Fiscal Year pursuant to such Restricted Paymentsubsection 6.1 in an amount not to exceed the amount, if any, by which (A) equity contributions made by the Parent or any of its Affiliates (other than any Loan Party) to the Borrower (other than cash contributions (including, without limitation, by way of subscription, “supplementary payments” or capital contributions (whether or not resulting in additional paid-in capital)) that are Gaming Net Proceeds) and/or proceeds of Shareholder Subordinated Indebtedness incurred by the Borrower during (or within 15 days after the end of) such Fiscal Quarter or the last Fiscal Quarter of such Fiscal Year, exceeds (B) such Specified Equity Contribution; and
(viii) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, may redeem or repurchase any equity interests in the case Loan Parties held by minority shareholders or any Indebtedness of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered and its Subsidiaries to the Administrative Agent extent such ownership by minority shareholders is no longer required by any Legal Requirement imposed by Macau SAR or any applicable gaming authority in order to preserve a Pro Forma Compliance Certificate with respect thereto)Gaming License.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, so except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Borrower and Restricted Subsidiary may make Restricted Payments to Persons any Person that own owns Equity Interests 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) each Loan Party Holdings and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) so long as no Event of Default is continuing or would result therefrom, Restricted Payments made from the Borrower may purchase, redeem, retire, defease or make net cash proceeds (other payments in respect of the 2,598 shares of its than Cure Proceeds) received by Holdings from any Permitted Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on Issuance after the Closing DateDate that are used substantially contemporaneously to make such Restricted Payment of Holdings (and to the extent not otherwise used under this Agreement);
(d) no Default exists immediately prior and if the First Lien Leverage Ratio equals or exceeds or would equal or exceed 2.50 to 1.00 (after giving effect Pro Forma Effect to such Restricted Payment and any Indebtedness relating thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Restricted Payments in an aggregate amount not to exceed $30,000,000 for during any fiscal year of the BorrowerHoldings, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP not to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as exceed (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, the greater of (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and $20,000,000 or (B) the 50% of Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than Income for the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have most recently ended fiscal year for which a Compliance Certificate has been delivered to the Administrative Agent a (such greater amount, the “Base Restricted Payment Allowance”), plus (ii) beginning with the fiscal year ending December 31, 2025, any portion of the Base Restricted Payment Allowance not used in the immediately preceding fiscal year; provided further that, after giving Pro Forma Compliance Certificate with respect Effect to any such Restricted Payment under this clause (d) and Indebtedness relating thereto), the sum the principal amount available to be borrowed under the Revolving Facility and Unrestricted Cash shall equal or exceed $30,000,000; and
(e) additional Restricted Payments; provided that the First Lien Leverage Ratio is less than 2.50 to 1.00 after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewith.
Appears in 1 contract
Restricted Payments. Declare or makeThe Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatPayment except:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings by any Restricted Subsidiary of the type Borrower to the Borrower or any Subsidiary Guarantor and by the Borrower to any Subsidiary Guarantor; and
(b) cash dividends on the Stock of Equity Interest the Borrower to Holdings paid and declared in any Fiscal Year solely for the purpose of funding the following:
(i) ordinary operating expenses and scheduled debt service of Holdings not in excess of $5,000,000 in any Fiscal Year;
(ii) payments by Holdings in respect of which foreign, federal, state or local taxes owing by Holdings in respect of the Borrower and the Restricted Subsidiaries, but not greater than the amount that would be payable by the Borrower, on a consolidated basis, if the Borrower were the taxpayer; provided, however, that the Restricted Payments described in clause (b) above shall not be permitted if such Restricted Payment is being made;
prohibited under the terms of any Indebtedness (bother than the Obligations) each Loan Party and each Subsidiary may declare and make dividend payments of the Borrower or other distributions payable solely in common Equity Interests of such Personany Restricted Subsidiary;
(c) the Borrower may purchase, redeem, retire, defease in connection with a refinancing or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Daterefunding permitted by Section 8.1(e);
(d) no Default exists immediately prior and after giving effect thereto, in respect of the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity InterestsObligations; orand
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Restricted Payments in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, 50% of the Additional Discretionary Amount (without taking into account (a) any amounts under clause (c) of the definition of Additional Discretionary Amount and (b) any Capital Expenditures made by the Borrower or any of its Subsidiaries by virtue of the definition of Additional Discretionary Amount). Notwithstanding anything in this Agreement to the contrary, no Restricted Payment described in clauses (b)(i) (as to debt service only), (b)(ii), (c) or (e) shall be permitted under this Section 8.5 if any Event of Default or Default shall have delivered to occurred and be continuing at the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)date of declaration or payment thereof or would result therefrom.
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not, nor shall Parent or makeany Subsidiary to, directly declare or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that:
(a) (i) Parent may declare or make cash distributions to its equity holders in an aggregate amount not to exceed the greater of (x) ninety-five percent (95%) of Parent’s Adjusted FFO for each Fiscal Quarter ending thereafter, or (y) the amount necessary for Parent to be able to make distributions required to maintain its status as a REIT and to avoid the imposition of any federal or state income tax, and to avoid the imposition of the excise tax described by Section 4981 of the Code, in each case on Parent; provided further that, in either case, (A) during the continuance of an Event of Default, Restricted Payments made pursuant to clause (a) shall not exceed the amounts described in clause (y), and (B) following a Bankruptcy Event with respect to the Borrower or the acceleration of the Obligations, Parent shall not make any cash distributions;
(b) the Borrower may make Restricted Payments ratably to the holders of its Equity Interests to permit Parent to make the Restricted Payments permitted under clause (a) above;
(c) each Subsidiary may make Restricted Payments ratably to Persons that own the holders of its Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeInterests;
(bd) each Loan Party and each Subsidiary Parent, the Borrower or any Guarantor may declare and make dividend payments or other distributions payable solely in the common Equity Interests equity interests or other equity interests of such Person;
entity including (ci) the Borrower may purchase“cashless exercises” of options granted under any share option plan adopted by such entity, redeem, retire, defease (ii) distributions of rights or make other payments equity securities under any rights plan adopted by such entity and (iii) distributions (or effect stock splits or reverse stock splits) with respect to its equity interests payable solely in respect of the 2,598 additional shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Dateequity interests;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) Parent, the Borrower and each Guarantor may pay quarterly make cash payments in lieu of the issuance of fractional shares representing insignificant interests in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of Parent, the Borrower or any Subsidiary;
(f) so long as no Change of Control results therefrom, Parent, the Borrower and each Subsidiary may make Restricted Payments in connection with the implementation of or pursuant to any retirement, health, stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of compensation;
(g) so long as no Change of Control results therefrom, the Borrower and each Subsidiary that is a Guarantor may make dividends or distributions to allow Parent to make payments in connection with share purchase programs, to the ESOP with respect to extent not otherwise prohibited by the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year terms of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerthis Agreement; and
(fh) the Borrower Parent may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect exercise any redemption or conversion rights with respect to such Restricted Payment, (A) the Loan Parties would be its Equity Interests in compliance accordance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) terms of the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of governing documents setting out any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)such rights.
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Restricted Payments. Declare or makepay any 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 Capital Stock of the Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Restricted PaymentSubsidiary, or incur enter into any obligation derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (contingent a “Derivatives Counterparty”) obligating the Borrower or otherwise) any Restricted Subsidiary to do somake payments to such Derivatives Counterparty as a result of any change in market value of any such Capital Stock (collectively, “Restricted Payments”), except that:
(ai) each any Restricted Subsidiary may make Restricted Payments to Persons the Borrower or any Subsidiary Guarantor, (ii) Non-Guarantor Subsidiaries that own Equity Interests in such Subsidiary, ratably according are Domestic Subsidiaries may make Restricted Payments to their respective holdings of the type of Equity Interest in respect of which such other Non-Guarantor Subsidiaries that are Domestic Subsidiaries that are Restricted Payment is being madeSubsidiaries and (iii) Non-Guarantor Subsidiaries that are Foreign Subsidiaries may make Restricted Payments to other Non-Guarantor Subsidiaries that are Restricted Subsidiaries;
(b) each Loan Party (i) provided that (x) no Default or Event of Default is continuing or would result therefrom and each Subsidiary (y) the Fixed Charge Coverage Ratio for the most recently ended period of four consecutive fiscal quarters of the Borrower exceeds 2.00:1.00 for such period immediately before and on a pro forma basis immediately after giving effect to such Restricted Payment, the Borrower may declare make Restricted Payments in an aggregate amount not to exceed an amount equal to the Available Amount and (ii) make dividend payments or other distributions payable solely Restricted Payments in common Equity Interests an aggregate amount not to exceed the greater of (A) $100,000,000 and (B) 1.75% of Consolidated Total Assets as of the end of the four fiscal quarter period most recently ended immediately prior to the date of such PersonRestricted Payment for which financial statements have been delivered pursuant to Section 6.1;
(c) the Borrower may purchasemake Restricted Payments to Holdings, redeemto permit Holdings to pay (i) any taxes which are due and payable by Holdings or such Parent Company, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners the Restricted Subsidiaries as part of Equity Interestsa consolidated group (or shareholders of Holdings, as to the extent such taxes are attributable to Holdings, the Borrower and the Restricted Subsidiaries, but not greater than the amount that would be payable by the Borrower, on a consolidated basis, if the Borrower were the taxpayer), (ii) customary fees, salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, their current and former officers and employees and members of their board of directors, (iii) ordinary course corporate operating expenses and other fees and expenses required to maintain its corporate existence, (iv) fees and expenses to the extent permitted under clause (i) of the second sentence of Section 7.9 and (v) reasonable fees and expenses incurred in effect on connection with any unsuccessful debt or equity offering by Holdings or such Parent Company to the Closing Dateextent that the proceeds thereof were intended to be used for the benefit of the Borrower and its Restricted Subsidiaries;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any make Restricted Payments in the form of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between common stock of the Borrower and certain owners of Equity Interests; orBorrower;
(e) the Borrower or any Subsidiary may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred make Restricted Payments to, directly or indirectly, purchase its Capital Stock and additional contributions from present or former officers, directors, consultants, agents or employees (or their estates, family members or former spouses) of Holdings, the Borrower or any Subsidiary upon the death, disability, retirement or termination of the applicable officer, director, consultant, agent or employee or pursuant to any equity subscription agreement, stock option or equity incentive award agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement; provided that the ESOP in an aggregate amount not to exceed $30,000,000 for of payments under this clause (e) in any fiscal year of the BorrowerBorrower shall not exceed the sum of (i) $20,000,000 (which shall increase to $30,000,000 subsequent to the consummation of a Holdings IPO) plus (ii) any proceeds received from key man life insurance policies, plus (iii) the amount of any bona fide cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Company, the Borrower or its Restricted Subsidiaries in connection with the Transactions that are foregone in return for the receipt of Capital Stock the fair market value of which is equal to or less than the amount of such cash bonuses; provided that within five Business Days any Restricted Payments permitted (but not made) pursuant to this clause (e) in the any prior fiscal year may be carried forward to any subsequent calendar year, subject to a maximum of making such payment $40,000,000 in any calendar year (which shall increase to $60,000,000 subsequent to the consummation of a Holdings IPO); and provided, further, that cancellation of Indebtedness owing to the Borrower receives or any Restricted Subsidiary by any member of management of Holdings, the Borrower or its Restricted Subsidiaries in connection with a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness repurchase of the ESOP Capital Stock of Holdings, the Borrower or its Restricted Subsidiaries will not be deemed to the Borrower; andconstitute a Restricted Payment for purposes of this Section 7.6;
(f) the Borrower and its Restricted Subsidiaries may make other noncash repurchases of Capital Stock deemed to occur upon exercise of stock options or similar equity incentive awards if such Capital Stock represent a portion of the exercise price of such options or similar equity incentive awards;
(g) [Intentionally Omitted];
(h) the Borrower may make Restricted Payments so long as to allow Holdings or any Parent Company to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Capital Stock of any such Person;
(i) provided that no Default exists immediately prior and or Event of Default is continuing or would result therefrom, after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000Holdings IPO, the Borrower may make Restricted Payments to Holdings so that Holdings may make Restricted Payments to its equity holders in an aggregate amount not exceeding 6.0% per annum of the Net Cash Proceeds received by the Borrower from any Equity Issuance in connection with a public offering of Capital Stock of Holdings; provided that the Available Amount shall have delivered be reduced by a corresponding amount of any such Restricted Payments;
(j) [Intentionally Omitted]; and
(k) to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)extent constituting Restricted Payments, the Borrower and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 7.4, 7.5, 7.7 and 7.9.
Appears in 1 contract
Samples: Credit Agreement (Allison Transmission Holdings Inc)
Restricted Payments. Declare or make(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment; provided that from and after January 1, or incur any obligation (contingent or otherwise) to do so2019, except that:
(a) each Subsidiary the Company may make Restricted Payments if, at the time of and after giving effect to Persons that own Equity Interests in such Subsidiarythe proposed Restricted Payment:
(1) no Event of Default shall have occurred and be continuing or will occur as a consequence thereof;
(2) (x) with respect to Restricted Payments other than any Junior Financing Payment or Restricted Investment, ratably according immediately after giving effect to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment on a Pro Forma Basis, (i) the Senior Secured Net Leverage Ratio shall not exceed 4.00:1.00 and (ii) the Total Net Leverage Ratio shall not exceed 4.50:1.00, and (y) with respect to Restricted Payments constituting Junior Financing Payments or Restricted Investments, immediately after giving effect to such Restricted Payment on a Pro Forma Basis, (i) the Senior Secured Net Leverage Ratio shall not exceed 4.00:1.00 and (ii) the Total Net Leverage Ratio shall not exceed 4.75:1.00; and
(3) after giving effect to such Restricted Payment on a Pro Forma Basis, the aggregate amount expended or declared for all Restricted Payments made on or after the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6) (7), (8), (9) and (10) of Section 4.07(b)) shall not exceed the sum (without duplication) of:
(i) 50% of the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100% of such deficit) of the Company accrued on a cumulative basis during the period (taken as one accounting period) from the first day of the fiscal quarter of the Company in which the Issue Date occurs and ending on the last day of the most recently ended fiscal quarter for which internal financial information is being made;available at the time of such Restricted Payment; plus
(ii) 100% of the aggregate net proceeds (including the Fair Market Value of property other than cash) received by the Company subsequent to the Issue Date either (i) as a contribution to its common equity capital or (ii) from the issuance and sale of its Qualified Capital Interests, including Qualified Capital Interests issued upon the conversion or exchange of Debt (including Redeemable Capital Interests) of the Company, and from the exercise of options, warrants or other rights to acquire such Qualified Capital Interests (other than, in each case, Capital Interests or Debt issued or sold to a Subsidiary of the Company); plus
(iii) 100% of the net reduction in Restricted Investments, made by the Company or any Restricted Subsidiary subsequent to the Issue Date, in any Person, resulting from (i) payments of interest on Debt, dividends, repayments of loans or advances, or any sale or disposition of such Restricted Investments (but only to the extent such items are not included in the calculation of Consolidated Net Income), or (ii) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (or the causing of a Person that is not a Subsidiary to become a Restricted Subsidiary), not to exceed in the case of any Person the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person subsequent to the Issue Date.
(b) each Loan Party Notwithstanding the provisions of Section 4.07(a), the Company and each its Restricted Subsidiaries may take the following actions:
(1) the payment of any dividend on Capital Interests in the Company or a Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests the consummation of any irrevocable redemption within 60 days after declaration thereof or the giving of such Personirrevocable notice, as applicable, if, at the declaration date or notice thereof, such payment was permitted by the foregoing provisions of this Section 4.07;
(c2) the Borrower may purchase, redeemrepurchase, retireredemption, defease defeasance or other acquisition or retirement of any Capital Interests of the Company by conversion into, or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of Qualified Capital Interests of the Company; provided, however, that the net cash proceeds from such sale of Qualified Capital Interests will be excluded from Section 4.07(a)(3)(ii) to the extent applied to any such purchase, repurchase, redemption, defeasance or other acquisition or retirement;
(3) the redemption, defeasance, repurchase or acquisition or retirement for value of any Junior Financing out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Company) of (x) Refinancing Debt of the Company or such Guarantor, as the case may be, Incurred in accordance with this Indenture or (y) Qualified Capital Interests of the Company;
(4) so long as no Event of Default has occurred and is continuing, the purchase, redemption, retirement or other acquisition for value of Capital Interests in the Company, MIPCo or any Parent Entity (or any payments to a Parent Entity for the purposes of permitting any such repurchase) held (i) in the case of the Company, by directors, officers, consultants, employees, former directors, former officers, former consultants or former employees of the Company or any Restricted Subsidiary (or their Affiliates, Immediate Family Members, estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or service or alteration of employment or service status or pursuant to the terms of any agreement under which such Capital Interests were issued (including any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement) and, for the avoidance of doubt, including any principal and interest payable on any promissory notes issued by the Company or any Parent Entity in connection with such purchase, redemption, retirement or other acquisition for value or (ii) in the case MIPCo, directly by the MIP Shareholders (or their Affiliates, Immediate Family Members, estates or beneficiaries under their estates); provided that, in the case of clauses (i) and (ii) above, the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition for value of such Capital Interests does not exceed $10.0 million in any calendar year; provided, further, that any unused amounts in any calendar year may be carried forward; provided, however, that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of Qualified Capital Interests of the Company or any direct or indirect Parent Entity of the Company (to the extent contributed to the Company) to directors, officers, employees or consultants of the Company and its Restricted Subsidiaries that occurs after the Issue Date; (provided, however, that the amount of such cash proceeds utilized for any such purchase, redemption, retirement, other acquisition for value or dividend will not increase the amount available for Restricted Payments under Section 4.07(a)(3)); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date (provided, however, that the Company may elect to apply all or any portion of the aggregate increase contemplated by the second and third provisos of this clause (4) in any calendar year and, to the extent any payment described under this clause (4) is made by delivery of Debt and not in cash, such payment shall be deemed to occur only when, and to the extent, the obligor on such Debt makes payments with respect to such Debt);
(5) dividend adjustments and repurchases of Capital Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities or the vesting of restricted stock units or deferred stock units (including any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement);
(6) Restricted Payments (A) to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Interests of the Company or the vesting of restricted stock units or deferred stock units and (B) consisting of: (i) payments made or expected to be made in respect of withholding or similar taxes or brokerage fees payable by any future, present or former officers, directors, employees, members of management or consultants of the 2,598 shares of its Equity Interests Company, any Restricted Subsidiary or any warrantParent Entity, right in each case, solely to the extent such taxes relate to the foregoing Persons’ ownership of Capital Interests in the Company; and/or (ii) repurchases of Capital Interests in consideration of the payments described in clause (i), including demand repurchases in connection with the exercise of stock options or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners vesting of Equity Interests, as in effect on the Closing Daterestricted stock units or deferred stock units;
(d7) so long as no Event of Default exists immediately prior has occurred and after giving effect theretois continuing or would result therefrom, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Restricted Payments constituting Junior Financing Payments in an aggregate amount not to exceed the greater of (x) $30,000,000 for any fiscal year 23.0 million and (y) 1.0% of Consolidated Total Assets;
(8) the extension of credit that constitutes intercompany Debt, the Incurrence of which is permitted pursuant to clauses (5), (6) and (7) of the Borrower, provided that within five Business Days definition of making such payment “Permitted Debt”;
(9) as required by the Borrower receives a payment in cash from the ESOP as a payment terms of principal, interest or other charges on Indebtedness contracts of the ESOP Company or any Restricted Subsidiary that are in effect on the Issue Date and Restricted Payments made pursuant to the BorrowerTransactions; and
(f10) the Borrower may make purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Junior Financing (A) at a purchase price not greater than 101% of the principal amount of such Junior Financing in the event of a change of control in accordance with provisions similar to Section 4.14 or (B) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to Section 4.10; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, the Company has complied with its obligations set forth in Section 4.14 of this Indenture;
(c) If the Company makes a Restricted Payment which, at the time of the making of such Restricted Payment, in the good faith determination of the Company, would be permitted under the requirements of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustment made in good faith to the Company’s consolidated financial statements affecting Consolidated Net Income.
(d) The amount of all Restricted Payments so long (other than cash) will be the Fair Market Value on the date of such Restricted Payment of the assets or securities proposed to be transferred or issued by the Company or any of its Restricted Subsidiaries, as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect the case may be, pursuant to such Restricted Payment, .
(Ae) the Loan Parties would be in For purposes of determining compliance with the financial covenants set forth in this Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and4.07, in the case of any event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in excess clauses (1) to (10) of $10,000,000Section 4.07(b) and/or one or more of the clauses contained in the definition of “Permitted Investments,” or is entitled to be made pursuant to Section 4.07(a), the Borrower shall have delivered Company will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part), in its sole discretion, such Restricted Payment or Investment (or portion thereof) among such clauses (1) to (10) of Section 4.07(b), and/or one or more of such clauses contained in the definition of “Permitted Investments” hereunder, or Section 4.07(a), in each case, in a manner that otherwise complies with this Section 4.07.
(f) Notwithstanding anything in this Section 4.07, no Investment may be made in any Unrestricted Subsidiary consisting of Intellectual Property which is material to the Administrative Agent business of the Company and its Restricted Subsidiaries, taken as a Pro Forma Compliance Certificate whole.
(g) For purposes of determining compliance with respect thereto)any U.S. dollar denominated restriction on Restricted Payments, the U.S. dollar equivalent of a Restricted Payment denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date the Company or the Restricted Subsidiary, as the case may be, first commits to such Restricted Payment.
Appears in 1 contract
Restricted Payments. Declare Make or make, directly declare or indirectly, otherwise become obligated to make any Restricted Payment, or incur except that this Section 4.08 shall not apply to any obligation (contingent or otherwise) to do so, except that:
Restricted Payment (a) each made by the Borrower or any Restricted Subsidiary may make to the Borrower or any other Restricted Subsidiary (other than, so long as any such Person is not a Wholly Owned Subsidiary, to the California Partnership, Denver or any of Denver's Subsidiaries, if the aggregate amount of Restricted Payments made to Persons that own Equity Interests such Persons, together with the aggregate amount of Investments made after the Restated Agreement Date in such Subsidiarythe California Partnership and Denver and its Subsidiaries by the Borrower and the Restricted Subsidiaries would, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
without duplication, exceed $50,000,000), (b) each Loan Party and each made by any Restricted Subsidiary may declare and make dividend payments or other distributions payable solely to the holders of any class of its Capital Securities, pro rata in common Equity Interests accordance with their respective interests in such class of such Person;
Capital Securities, (c) the Borrower may purchaseconsisting of payments under Permitted Tax Sharing Agreements, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior consisting of regularly scheduled payments of interest on the Greenco Note, but only to the extent required in accordance with the terms thereof to be made in cash, and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) so long as no Default shall have occurred and be continuing or would result therefrom, made by the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not in excess of the sum of (i) $25,000,000 during the period from the Restated Agreement Date to exceed the Repayment Date, (ii) an additional $30,000,000 for 5,000,000 during any fiscal year of the Borrower, provided that within five Business Days commencing with the fiscal year ending June 30, 2000 and (iii) an additional amount in any fiscal year of making such payment the Borrower receives a payment in cash from equal to 50% of Excess Cash Flow for the ESOP as a payment of principalimmediately preceding fiscal year commencing with the fiscal year ending June 30, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments 2000, so long as (i) no Default exists immediately prior the ratio of Consolidated Debt to Operating Cash Flow is less than 4.50 to 1.00 before and after giving effect thereto and thereto, with any portion of such amounts described in clauses (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (Biii) not paid in such fiscal year being permitted to be carried forward and paid in any subsequent fiscal year; provided, however, that the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than amount of Restricted Payments permitted to be made pursuant to this Section 4.08(e) shall be reduced by the maximum then permitted under amount of Investments made pursuant to Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto4.11(h).
Appears in 1 contract
Restricted Payments. Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, except however, that:
(a) each i. any Subsidiary may declare and pay dividends or make Restricted Payments other distributions ratably to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeits equity holders;
(b) each Loan Party ii. the Borrower and each Subsidiary may declare and make dividend payments or other distributions to the extent payable solely in common the Equity Interests (other than Disqualified Stock not otherwise permitted by Section 6.01 or such dividend payments or distributions that would cause a Change in Control) of such Person;
(c) the Borrower may purchase, redeem, retire, defease iii. so long as no Event of Default or make other payments in respect of the 2,598 shares of its Equity Interests Default shall have occurred and be continuing or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect theretowould result therefrom, the Borrower may purchasedeclare or make, redeemor agree to declare or make any Restricted Payment; provided that, retire(i) at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, defease any the Leverage Ratio would be no greater than 4.00 to 1.00 and (ii) such Restricted Payment, together with the aggregate amount of its Equity Interests all other Restricted Payments made by the Borrower pursuant to certain Restated Stock Transfer Restriction Agreements between this Section 6.06(c) does not exceed the sum of (x) $10,000,000 in any fiscal year and $20,000,000 in the aggregate during the term of this Agreement, plus (y) up to 100% of the aggregate amount of the Net Cash Proceeds of Equity Issuances by or other cash contributions to the capital of the Borrower after the Closing Date (other than Disqualified Stock and certain owners Equity Issuances made pursuant to Section 7.02) and Not Otherwise Applied;
iv. so long as no Event of Equity Interests; or
(e) Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may pay quarterly cash dividends make Restricted Payments to Holdings the ESOP with respect proceeds of which are used to repurchase the Borrower’s Class C Preferred Stock and additional contributions from Equity Interests of Holdings or any Parent Entity owned by employees of Holdings, any Parent Entity, the Borrower or the Subsidiaries or make payments to employees of Holdings, any Parent Entity the ESOP Borrower or the Subsidiaries in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $30,000,000 for 7,500,000 in any fiscal year year;
v. the Borrower may make Restricted Payments to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity not to exceed $7,500,000 in any fiscal year, (ii) reasonable and necessary fees and expenses related to any public offering or private placement of equity securities or debt (including any debt securities or bank loans) of, or any other transaction permitted to be undertaken pursuant to Section 6.21 by, Holdings or any Parent Entity whether or not consummated, (iii) fees and expenses (other than Taxes) incurred in connection with the maintenance of its (or its Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, provided that within five Business Days of making such (iv) amounts necessary to enable Holdings to satisfy interest payment the Borrower receives a payment obligations in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness respect of the ESOP Holdings Notes when due, not to exceed amounts contemplated by the Borrower; and
Holdings Notes Documents (fas in effect on the Closing Date), (v) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto payments permitted by Section 6.08, and (iivi) upon giving effect customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, directors, officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such Restricted Paymentpayments; provided, that (Aa) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000clauses (i), (ii) and (iii), the Borrower amount of such Restricted Payments shall have delivered not exceed the portion of any amounts referred to in such clauses (i), (ii) and (iii) that are allocable to the Administrative Agent a Pro Forma Compliance Certificate Borrower and its Subsidiaries (which shall be 100% for so long as Holdings or such Parent Entity, as the case may be, owns no assets other than the Equity Interests in the Borrower, Holdings, or another Parent Entity) and (b) all Restricted Payments made to Holdings pursuant to this Section 6.06(e) are used by Holdings for the purposes specified herein within thirty (30) days after Holdings’ receipt thereof; and
vi. with respect theretoto any taxable period for which Holdings or any Parent Entity files, as common parent, a consolidated, combined, affiliated or unitary income Tax return that includes Borrower (a “Consolidated Return”), Borrower may make Restricted Payments to Holdings or such Parent Entity (as applicable) in such amounts as shall be required by such common parent to pay the Tax liability due with respect to such Consolidated Return to the extent such Tax liability is directly attributable to the income of Borrower and the Subsidiaries included in such Consolidated Return (the “Borrower Consolidated Group”), but only to the extent the Borrower and the Subsidiaries have not otherwise made Restricted Payments or any other distributions or payments to satisfy such Tax liability (“Borrower Group Payments”); provided that the amount of Restricted Payments permitted under this clause with respect to any taxable period shall not exceed (x) the amount that the Borrower Consolidated Group would be required to pay in respect of U.S. federal, state and/or local income Taxes for such taxable period, determined taking into account any available net operating loss carryovers or other tax attributes of the Borrower Consolidated Group, as if the Borrower Consolidated Group filed a separate consolidated, combined, affiliated or unitary income Tax return, reduced by (y) any applicable Borrower Group Payments.
Appears in 1 contract
Samples: Credit Agreement (Energy & Exploration Partners, Inc.)
Restricted Payments. Declare or makeThe Borrower shall not, directly or indirectlyand shall not permit any other Obligor to, make any Restricted Payment, or incur set apart any obligation (contingent or otherwise) to do sosum for the purpose of making any Restricted Payment, except thatother than:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings made by any Subsidiary of the type Borrower to the Borrower and to wholly-owned Subsidiaries of Equity Interest in respect of which such Restricted Payment is being madethe Borrower;
(b) each Loan Party Restricted Payments made by the Borrower in the nature of dividends and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) to the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares holders of its Equity Interests or before the Term Conversion Date, at such times as are provided for in the Depositary Agreement, but in any warrantcase, right or option no more than once a quarter; provided, however, with respect to acquire this clause (b), that:
(i) the then-outstanding Term Loans are prepaid simultaneously with such Equity Interests pursuant Restricted Payment in an amount equal to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners amount of Equity Interests, as in effect on the Closing DateRestricted Payment;
(di) no Default exists immediately prior and after giving effect theretoAll Mandatory Prepayments made in 2024, in the Borrower may purchaseaggregate, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year as of the Borrower, provided that within five Business Days proposed date of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, shall have met or exceed the Target Aggregate Special Principal Payment Amount for such quarter;
(ii) Administrative Agent receives a written certification from the Borrower (confirmed by the Independent Engineer) that (A) any of the Loan Parties would be in compliance with Initial Projects then under construction are forecasted to achieve Substantial Completion on or before the financial covenants set forth in Section 8.11 on a Pro Forma Basis and Date Certain, (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 Project Costs included in the most recent Base Case Projections are an accurate estimate of the amount of Project Costs required for such Project to achieve Substantial Completion; and (C) Available Construction Funds for Initial Projects under construction are not less than the maximum then permitted under Section 8.11(aaggregate unpaid amount required to cause Final Completion for such Projects to occur in accordance with all Requirements of Law and the EPC Contracts;
(iii) (and, in at the case time of any such Restricted Payments (pro forma for such Restricted Payment, any Indebtedness incurred in connection therewith (including any Loans) and all other applicable pro forma adjustments), the Pre-Term Conversion Debt Service Coverage Ratio for the Calculation Period relating to the Quarterly Payment Date immediately preceding the proposed date of such Restricted Payment in excess of $10,000,000, the Borrower shall have delivered is greater than or equal to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).1.40:1.00;
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation except (contingent or otherwise) to do soin each case of the following, except that:
for clauses (a), (b), (d), and (g), solely to the extent of funds available in accordance with Section 2.16(i)(x)(A), Section 2.16(j)(i) and Section 2.16(m)): (a) each Subsidiary may the Borrower may, if permitted pursuant to Section 2.13(e)(i), make a Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings Payment on the date of the type funding of Equity Interest in respect of which such Restricted Payment is being made;
the applicable Incremental Term Loans; (b) the Borrower may make distributions for purposes of reimbursing Drawstop Equity Contributions following any Drawstop Period, to the extent of Drawstop Equity Contributions made during such Drawstop Period, from proceeds of any Term Loans made after such Drawstop Period, provided that to the extent any Drawstop Equity Contributions have been designated as Equity Commitment L/C Reducing Contributions and the Equity Commitment L/Cs have been reduced to account for such Equity Commitment L/C Reducing Contributions pursuant to Section 2.16(d)(ii), the Borrower shall only be entitled to make a distribution pursuant to this Section 7.07(b) to reimburse such Drawstop Equity Contribution if the Sponsors amend and increase an existing Equity Commitment L/C or provide an additional Equity Commitment L/C, in each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely case with a face value in common an amount such that the aggregate face value of all Equity Interests of such Person;
Commitment L/Cs is at least equal to the unfunded Minimum Equity Contribution Amount; (c) the Borrower may purchase, redeem, retire, defease or declare and make other payments Restricted Payments solely to Pledgor payable solely in respect of the 2,598 shares of its Equity Interests or of Borrower; provided that any warrant, right or option to acquire such Equity Interests pursuant Interest shall be become Pledged Equity and that the Borrower shall promptly (and in no event no later than ten (10) days from such Restricted Payment, or confirmation in lieu thereof that 90 KE 73718588.20 US-DOCS\142539518.2141222994.8 such certificates, powers and instruments have been sent for overnight delivery to certain Stock Purchase Agreements the Collateral Agent) deliver to the Collateral Agent certificates, to the extent any such Equity Interest is certificated, representing Equity Interest accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, in the form delivered on the Closing Date or otherwise reasonably satisfactory to the Administrative Agent; (Restatedd) between Restricted Payments that are made in an amount equal to the amount of Excluded Proceeds previously received and the Borrower elects to apply under this clause (d); (e) to the extent constituting Restricted Payments, the Borrower and certain owners its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Equity Interests, as in effect on the Closing Date;
Section 7.03 (dother than clause (c) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrowerdefinition of “Permitted Investments”, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest Section 7.03 or Section 7.08 (other charges on Indebtedness of the ESOP to the Borrowerthan Section 7.08(d)); and
(f) the Borrower may make other Restricted Payments so long to any direct or indirect parent of the Borrower, with respect to each taxable year ending after the Closing Date for which the Borrower is treated as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions to such Restricted Payment, the Borrower’s equity owners in an aggregate amount equal to the product of (A) the Loan Parties net taxable income of the Borrower (other than the taxable income of the Borrower directly or indirectly allocable to SMLP) for such taxable year, reduced by any cumulative and taxable loss of the Borrower with respect to all prior taxable years ending after the Closing Date to the extent such cumulative net taxable loss would be have been deductible by the equity owners against such taxable income if such loss had been incurred in compliance with the financial covenants set forth taxable year in Section 8.11 on a Pro Forma Basis question (assuming that the equity owners have no items of income, gain, loss, deduction or credit other than through the Borrower) and has not previously been taken into account in determining Permitted Tax Distributions and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less assumed tax rate, which reflects the effective U.S. federal, state and local income tax rates actually applicable to direct or indirect equity owners of Borrower, other than public shareholders indirectly owning equity in the maximum then Borrower through SMLP for such taxable year (taking into account the tax status of such equity owners, any foreign tax credits or other available credits and the character of the taxable income in question (long-term capital gain, qualified dividend income, etc. and the deductibility of state and local income taxes for U.S. federal income tax purposes (and any applicable limitation thereon)); provided that any distributions under this clause (f) with respect to any such taxable year may be made in installments during the course of the taxable year using reasonable estimates of the anticipated aggregate amount of distributions for such taxable year, with (x) any excess of aggregate installments with respect to any such taxable year over the actual amount of distributions permitted for such taxable year reducing any distributions under Section 8.11(athis clause (f) with respect to the immediately subsequent taxable year (and, to the extent such excess is not fully absorbed in the case of immediately subsequent taxable year, the following year(s)) and (y) any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered actual amounts of distributions permitted for such taxable year over the aggregate installments with respect to any such taxable year increasing any distributions under this clause (f) with respect to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).immediately subsequent taxable year) (any such 91 KE 73718588.20 US-DOCS\142539518.2141222994.8
Appears in 1 contract
Restricted Payments. Declare The Borrower will not, and will not permit any of the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatas follows:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(ci) the Borrower may purchase, redeem, retire, defease or make other payments declare and pay dividends with respect to its Equity Interests payable solely in respect of the 2,598 additional shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;other than Disqualified Capital Stock).
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(fii) the Borrower may make other Restricted Payments (including, without limitation, the declaration and payment of cash distributions to its Equity Interest holders) up to the amount of Available Cash so long as (i) no Default exists immediately prior or Event of Default has occurred and after giving effect thereto and is continuing or would result therefrom, (ii) upon no Commitment Deficiency exists at such time or would result therefrom and (iii) after giving effect to such Restricted Payment, the Borrower is in Pro Forma Compliance with (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis 9.01 and (B) a minimum Recognized Value Ratio of 2.00 to 1.00.
(iii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests.
(iv) any Restricted Subsidiary may make Restricted Payments to the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than Borrower or any other Loan Party.
(v) the maximum then permitted Borrower may make Restricted Payments pursuant to and in connection with stock option plans or other benefit plans or arrangements for directors, management, employees or consultants of the Borrower and the Restricted Subsidiaries; provided that the amount of Restricted Payments in cash under Section 8.11(athis clause (e) shall not exceed $5,000,000 during any fiscal year.
(and, in vi) the case Borrower and the Restricted Subsidiaries may make Restricted Payments constituting purchases by the Borrower or any Restricted Subsidiary of any other Restricted Payment in excess of $10,000,000, the Borrower shall have delivered Subsidiary’s capital stock pursuant to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)transaction expressly permitted by Section 9.05.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary of Parent may make Restricted Payments to, or on behalf of or for the benefit of, Parent to Persons that own Equity Interests enable Parent to pay out-of-pocket accounting fees, legal fees and other amounts incurred or owing by Parent in such Subsidiary, ratably according the ordinary course of business pursuant to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeShared Services Agreement;
(b) each Loan Party Subsidiary of Parent may make Restricted Payments to, or on behalf of or for the benefit of, Parent in respect of (i) income Tax liabilities of Parent and each Subsidiary may declare its Subsidiaries in accordance with the Tax Sharing Agreement, (ii) value added Tax, franchise Taxes and make dividend payments similar Taxes to enable Parent to pay any such Taxes imposed on Parent on behalf or on account of its Subsidiaries and (iii) without duplication, any non-income Taxes imposed on Parent that are not attributable to assets or Subsidiaries owned by Parent other distributions payable solely in common Equity Interests than the Borrower and its Subsidiaries; provided however that the sum of any such PersonRestricted Payments made pursuant to clauses (ii) and (iii) of this Section 9.6(b) shall not exceed $1,000,000 for any taxable year of Parent;
(c) so long as (x) at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, and (y) in the case of a Restricted Payment pursuant to any of clauses (iv) through (vii) below, the Loan Parties shall be in compliance with the applicable Financial CovenantsSection 9.1, on a Pro Forma Basis after giving effect thereto as of the latest Measurement Period (or with respect to Section 9.2, as of such date), each of Holdings and the Borrower may purchasemake Restricted Payments in cash to enable Parent and its Subsidiaries to do the following, redeembut in the case of clauses (i), retire(ii) and (iii), defease only to the extent such obligations cannot be met with cash flow available to Parent and its Subsidiaries from the Partnership Parks Entities or from Net Cash Flow from Partnership Parks:
(i) to pay obligations of Parent or any of its Subsidiaries under the Partnership Parks Agreements; and
(ii) to purchase limited partnership units under the Partnership Parks Agreements;
(iii) to make Capital Expenditures for the Partnership Parks Entities;
(iv) to move money to Parent to finance any Investment permitted to be made pursuant to Section 9.8 (other than Section 9.8(e)(i)); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment (or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection therewith) and (B) Parent shall, immediately following the closing or consummation thereof, cause (1) all property acquired (whether assets or equity interests) to be contributed to the Borrower or a Loan Party (or a Person that will become a Loan Party upon receipt of such contribution) or (2) the merger (to the extent permitted in Section 9.5(a)) of the Person formed or acquired into the Borrower or a Loan Party in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 8.6;
(v) to make cash payments in respect lieu of the 2,598 issuance of fractional shares in connection with the exercise of its Equity Interests warrants, options or other securities convertible into or exchangeable for equity interests of Parent; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 9.6 (as determined in good faith by the board of directors or the managing board, as the case may be, of Parent (or any warrantauthorized committee thereof));
(vi) to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement not in excess of $15,000,000 in the aggregate; and
(vii) to pay fees, right costs and expenses related to the Transactions and the Related Transactions and in connection with any proposed issuance of unsecured Indebtedness (whether or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Datenot successful);
(d) no Default exists immediately prior to the extent constituting Restricted Payments, Parent and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 9.5 (other than Section 9.5(c) (other than clauses (iii) or (iv)));
(e) so long as (i) at the time thereof and after giving effect theretothereto no Event of Default shall have occurred and be continuing and (ii) the Parent Consolidated Leverage Ratio is less than the RP Trigger Ratio after giving Pro Forma Effect to the Restricted Payment as of the relevant Measurement Period, Parent, Holdings and the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between make Restricted Payments in an aggregate amount not exceeding the Borrower and certain owners of Equity Interests; orAvailable Amount;
(ef) Parent and its Subsidiaries may make Restricted Payments in the form of noncash repurchases of Capital Stock of Parent deemed to occur upon the exercise of stock options or warrants if such repurchased Capital Stock represents all or a portion of the exercise price of such options or warrants and cash payments of Taxes in connection therewith and cash payments in lieu of the issuance of fractional shares in connection with the exercise of such stock options or warrants;
(g) Parent and its Subsidiaries may make (i) Restricted Payments of Capital Stock of an Unrestricted Entity, or (ii) Restricted Payments funded with dividends, sale proceeds or other distributions received from Unrestricted Entities;
(h) Each of Holdings and the Borrower may pay quarterly make Restricted Payments in cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock enable Parent, and additional contributions Parent may make Restricted Payments from the Borrower to the ESOP RP Eligible Proceeds in an aggregate amount not to exceed $30,000,000 for any fiscal year 200,000,000; provided that after giving Pro Forma Effect to (i) each Disposition which is the source of such RP Eligible Proceeds and (ii) the corresponding Restricted Payment, the Parent Consolidated Leverage Ratio is less than the RP Trigger Ratio as of the Borrower, provided that within five Business Days relevant Measurement Period;
(i) Each of making such payment Holdings and the Borrower receives a payment may make Restricted Payments in cash in an aggregate amount not to exceed $25,000,000, to enable Parent to repurchase, retire or acquire for value equity interests of Parent from any future, present or former employee or director (or the ESOP as a estate, family members, spouse, successors, executors, administrator, heirs, legatees or distributees of the foregoing) of Parent or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of Parent or any of its Subsidiaries;
(j) Each of Holdings and the Borrower may make Restricted Payments in cash to enable Parent, and Parent may make Restricted Payments to executives of Parent when restricted Capital Stock of Parent vests (in lieu of payment of principalincome tax by such executives);
(k) so long as at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, interest or other charges Parent, Holdings and the Borrower may make Restricted Payments in an aggregate amount up to $50,000,000 during each fiscal quarter;
(l) so long as (x) no Event of Default has occurred and is continuing and (y) the Loan Parties shall be in compliance with Section 9.1 on Indebtedness a Pro Forma Basis after giving effect to such Restricted Payment as of the ESOP relevant Measurement Period, Parent may make Restricted Payments in an aggregate amount up to Net Cash Flow from Partnership Parks;
(m) so long as no Event of Default under Section 10(a) (with respect to the Borrowerpayment of principal or interest on any Loan or Reimbursement Obligation) has occurred and is continuing, Borrower may make Restricted Payments in an amount sufficient for Parent or Holdings to make regularly scheduled payments of interest, fees, indemnities and expenses in accordance with the terms of the Senior Notes and any Indebtedness incurred pursuant to Section 9.3(i) and Section 9.3(n) and to make AHYDO catch-up payments in respect of the Senior Notes and any Indebtedness incurred pursuant to Section 9.3(i) and Section 9.3(n);
(n) [reserved];
(o) so long as at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, Holdings and Borrower may make additional Restricted Payments such that Parent and its Subsidiaries may make payments in respect of senior unsecured Indebtedness pursuant to Section 9.9(l), (m)(i) and (n);
(p) so long as at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, each of Holdings and Borrower may make Restricted Payments to Parent to enable Parent to make Restricted Payments in an aggregate amount not to exceed $100,000,000; and
(fq) the Borrower may make other cash Restricted Payments so long as (i) no Default exists immediately prior at the time thereof and after giving effect thereto no Event of Default shall have occurred and (ii) upon be continuing; provided that at the time of making such Restricted Payments, the Senior Secured Leverage Ratio is equal to or less than 2.50 to 1.00, after giving effect Pro Forma Effect to such Restricted Payment, Payments as of the relevant Measurement Period; and
(Ar) so long as (x) no Event of Default has occurred and is continuing and (y) the Loan Parties would Parent Consolidated Leverage Ratio is less than the RP Trigger Ratio after giving Pro Forma Effect to the Restricted Payment as of the relevant Measurement Period, Parent may make Restricted Payments in an aggregate amount not exceeding the Parent Available Amount. Nothing herein shall be in compliance with deemed to prohibit the financial covenants payment of Restricted Payments by any Subsidiary to its immediate parent company and each other owner of Capital Stock of such Subsidiary based on their relative ownership interests (provided however that Borrower and its Subsidiaries may not declare or make any Restricted Payments to Holdings or Parent except as otherwise set forth in this Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto9.6).
Appears in 1 contract
Restricted Payments. Declare No Obligor shall, or makeshall cause or permit any Subsidiary thereof to, directly make or indirectly, pay any Restricted Payment, or incur any obligation other than (contingent or otherwisei) Restricted Payments to Holdings to permit Holdings (contemporaneously with, and in the same amount of, such payments) to do so, except that:
(aA) each Subsidiary may make Restricted Payments to Persons that own Equity Interests Parent pursuant to, and not in such Subsidiary, ratably according to their respective holdings excess of the type amounts required under, the tax sharing agreements described on SCHEDULE 3.13 as of Equity Interest the Closing Date in respect of which such Restricted Payment is being made;
taxes payable for periods (bor portions thereof) each Loan Party ending on or prior to the closing on the Closing Date and each Subsidiary may declare (B) pay Federal, state and make dividend payments local income tax obligations actually due and payable in cash by Holdings for periods (or other distributions payable solely in common Equity Interests of such Person;
(cportions thereof) commencing after the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect closing on the Closing Date;
, to the extent such obligations are the result of the net income or loss of Obligors and their Subsidiaries being attributed to Holdings for tax purposes, (dii) no Default exists immediately prior Restricted Payments to Holdings to permit Holdings (contemporaneously with, and after giving effect theretoin the same amount of, such payments) to pay fees and expenses necessary to maintain Holdings' corporate existence and good standing, (iii) Restricted Payments to Holdings to permit Holdings (contemporaneously with, and in the Borrower may purchasesame amount of, redeem, retire, defease any of its Equity Interests pursuant such payments) to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends in respect of its common stock, PROVIDED that
(A) only one such set of Restricted Payments may be made during any Fiscal Quarter, (B) all such Restricted Payments made during any Fiscal Quarter shall be made during the fifteenth (15th) through the twentieth (20th) (except, the thirty- fifth (35th) day, in the case of such a Restricted Payment to be made during the first Fiscal Quarter of Fiscal Year 2000) consecutive day immediately following the end of the immediately preceding Fiscal Quarter, (C) at least five (5) days prior to such Restricted Payment (except, one (1) day, in the case of such a Restricted Payment made during the third Fiscal Quarter of Fiscal Year 1999), Agent shall have received preliminary versions of the Financial Statements to be delivered to Agent pursuant to ANNEX E for the immediately preceding Fiscal Quarter, together with an attached certificate of the Chief Financial Officer of Holdings (on behalf of itself and each Borrower) to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided effect that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f1) the Borrower may make other Restricted Payments so long as final Financial Statements to be delivered to Agent for such immediately preceding Fiscal Quarter will not differ in any material respect from such preliminary Financial Statements and (i2) no Default exists immediately prior or Event of Default had occurred or been continuing as of the end of the period covered by such Financial Statements (other than as of the end of the second Fiscal Quarter of Fiscal Year 1999), has occurred or is continuing as of the date of such certificate or would result from the making of such Restricted Payment, (D) the aggregate amount of all such Restricted Payments made during any Fiscal Quarter shall not exceed $0.0375 per each share of Holdings' common stock and (E) concurrently with each delivery of the Financial Statements described in clause (C) above, Holdings shall have delivered to Agent, in form and substance satisfactory to Agent and based on recent financial data, a pro forma consolidated balance sheet of Holdings and its Subsidiaries indicating that Borrowing Availability shall be at least $5,500,000 (after giving effect thereto to such Restricted Payment and all Revolving Credit Advances to be made in connection therewith, and with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales); (iv) Restricted Payments not in excess of $700,000 in the aggregate used to fund the purchase by Nutrition of its Stock pursuant to any "Phantom Stock" agreement separately identified in SCHEDULE 3.10 as of the Closing Date from the other agreements described therein; (v) transactions permitted under SECTION 6.4 and (iivi) upon Restricted Payments to one or more Borrowers; PROVIDED THAT, in the case of Restricted Payments described in the foregoing clauses (iii) through (vi), no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 1 contract
Samples: Credit Agreement (Weider Nutrition International Inc)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary Make any Restricted Payments; provided, that (i) in the absence of an Event of Default or Default hereunder, and provided no Event of Default or Default would be caused by such payment, the Companies may make Restricted Payments to Persons regularly scheduled payments of principal and interest on the Existing Xxxxxxx Subordinated Debt and the Existing Richmont Subordinated Debt, and (ii) provided there is no Event of Default under Paragraph 7.1(a) hereof, the Loans have not been accelerated as provided herein, and no "Payment Blockage Period" is in effect under the Indenture, Borrower may make payments required under the Richmont Subordinated Notes, provided, that own Equity Interests in such Subsidiary, ratably according to their respective holdings at any time that an Event of Default or Default exists under this Agreement Borrower shall give Lenders not less than ten (10) Business Days prior written notice of any proposed payment on the type of Equity Interest in respect of which such Restricted Payment is being made;Richmont Subordinated Notes.
(b) each Loan Party Make any voluntary payment or prepayment of any Indebtedness, including, without limitation, any obligations to sellers in connection with previous acquisitions, other than the Senior Obligations, and each Subsidiary may declare and make dividend payments or other distributions payable solely provided that, in common Equity Interests the absence of such Person;
(c) the Borrower may purchasean Event of Default hereunder, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners its Subsidiaries may (i) make all regularly scheduled payments of Equity Interests, as principal and interest on account of any such Indebtedness and obligations and (ii) make prepayments of Seller Obligations which are not Subordinated Debt in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any final settlement of its Equity Interests pursuant all obligations to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP a seller in an aggregate amount not to exceed Ten Million Dollars ($30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and10,000,000).
(fc) Make any payments of management fees or consulting fees; provided, however, that in the Borrower may make other Restricted Payments so long as absence of an Event of Default hereunder, (i) Borrower may pay consulting fees to Monroe & Company LLC and Richmont Capital Partners I, L.P. (A) as described in clause (i) of the disclosure under Paragraph 6.9 on Exhibit C, and (B) as described in clause (ii) of the disclosure under Paragraph 6.9 of Exhibit C, in an aggregate amount not to exceed in any twelve month period $500,000, provided, that no Default exists immediately such fees shall be paid to Monroe & Company LLC or Richmont Capital Partners I, L.P. prior and after giving effect thereto to completion of a Successful Syndication, and (ii) upon giving effect the Companies may make payments of Seller Obligations which are not Subordinated Debt; provided, however, that -------- ------- if a judgment is rendered by a court of competent jurisdiction providing that any fee or obligation is owed to Monroe & Company, LLC then Borrower may make such Restricted Payment, (A) the Loan Parties would be payment provided that Borrower has defended in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis good faith such suit and (B) the Consolidated Net Leverage Ratio kept Agent reasonably advised as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)status of the suit.
Appears in 1 contract
Restricted Payments. Declare or makepay any 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 Capital Stock of the Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or Property or in obligations of the Borrower or any Restricted PaymentSubsidiary, or incur enter into any obligation derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (contingent a “Derivatives Counterparty”) obligating the Borrower or otherwise) any Restricted Subsidiary to do somake payments to such Derivatives Counterparty as a result of any change in market value of any such Capital Stock (collectively, “Restricted Payments”), except that:
(ai) each any Restricted Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according the Borrower or any Subsidiary Guarantor and (ii) Non-Guarantor Subsidiaries may make Restricted Payments to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeother Non-Guarantor Subsidiaries;
(b) each Loan Party provided that (i)(x) no Default or Event of Default is continuing or would result therefrom and each Subsidiary (y) the Consolidated Net Total Leverage Ratio shall not exceed 3.00 to 1.00, on a pro forma basis as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1, both immediately prior to and immediately after giving effect to such Restricted Payment, the Borrower may declare make Restricted Payments in an aggregate amount not to exceed the Available Amount, (ii)(x) no Default or Event of Default is continuing or would result therefrom and (y) the Consolidated Net Total Leverage Ratio shall not exceed 2.00 to 1.00 on a pro forma basis as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1, both immediately prior to and immediately after giving effect to such Restricted Payment, the Borrower may make dividend payments or other distributions payable solely in common Equity Interests of such Personunlimited Restricted Payments;
(c) the Borrower may purchasemake Restricted Payments to Parent, redeemHoldings or any Parent Company that is a Subsidiary of Parent to permit Holdings or any Parent Company to pay (i) any taxes which are due and payable by Holdings or any Parent Company, retirethe Borrower and the Restricted Subsidiaries as part of a consolidated group to the extent such taxes are directly attributable to the income of the Borrower and any Subsidiaries (the “Borrower Consolidated Group”), defease or make other payments provided that the total amount of any payment pursuant to this clause for any taxable period shall not exceed the amount that the Borrower Consolidated Group would be required to pay in respect of Federal, state and local income taxes for such period, determined by taking into account any available net operating loss carryovers or other tax attributes of the 2,598 shares Borrower Consolidated Group as if the Borrower Consolidated Group filed a separate a consolidated, combined, unitary or affiliated income tax return, less the amount of any such taxes payable directly by the Borrower Consolidated Group, (ii) customary fees, salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, their current and former officers and employees and members of their Board of Directors, (iii) ordinary course corporate operating expenses and other fees and expenses required to maintain its Equity Interests corporate existence, (iv) fees and expenses to the extent permitted under clause (i) of the second sentence of Section 7.9, (v) reasonable fees and expenses incurred in connection with any debt or equity offering by Parent, Holdings or any warrantParent Company that is a Subsidiary of Parent, right or option to acquire such Equity Interests pursuant the extent the proceeds thereof are (or, in the case of an unsuccessful offering, were intended to certain Stock Purchase Agreements (Restatedbe) between used for the benefit of the Borrower and certain owners of Equity Intereststhe Restricted Subsidiaries, as whether or not completed and (vi) reasonable fees and expenses in effect on the Closing Dateconnection with compliance with reporting obligations under, or in connection with compliance with, federal or state laws or under this Agreement or any other Loan Document;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any make Restricted Payments in the form of its Equity Interests pursuant to certain Restated Capital Stock Transfer Restriction Agreements between of the Borrower and certain owners of Equity Interests; orBorrower;
(e) the Borrower or any Subsidiary may make Restricted Payments to, directly or indirectly, purchase the Capital Stock of the Borrower, Holdings, Parent or any Parent Company that is a Subsidiary of Parent from present or former officers, directors, consultants, agents or employees (or their estates, trusts, family members or former spouses) of Parent, Holdings, the Borrower or any Parent Company that is a Subsidiary of Parent upon the death, disability, retirement or termination of the applicable officer, director, consultant, agent or employee or pursuant to any equity subscription agreement, stock option or equity incentive award agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement; provided that the aggregate amount of payments under this clause (e) in any fiscal year of the Borrower shall not exceed the sum of (i) $20,000,000 in any fiscal year (but not exceeding $50,000,000 in the aggregate since the Amendment and Restatement Effective Date), plus (ii) any proceeds received from key man life insurance policies, plus (iii) any proceeds received by the Borrower, Parent, Holdings or any Parent Company that is a Subsidiary of Parent during such fiscal year from sales of the Capital Stock of Parent, Holdings, the Borrower or any Parent Company that is a Subsidiary of Parent to directors, consultants, officers or employees of Parent, Holdings, the Borrower or any Parent Company that is a Subsidiary of Parent in connection with permitted employee compensation and incentive arrangements, plus (iv) the amount of any bona fide cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Company, the Borrower or its Restricted Subsidiaries in connection with the 2008 Transactions that are foregone in return for the receipt of Capital Stock the fair market value of which is equal to or less than the amount of such cash bonuses; provided that any Restricted Payments permitted (but not made) pursuant to sub-clause (ii), (iii) or (iv) of this clause (e) in any prior fiscal year may be carried forward to any subsequent calendar year, and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary by any member of management of Holdings, Parent, any Parent Company that is a Subsidiary of Parent, the Borrower or its Restricted Subsidiaries in connection with a repurchase of the Capital Stock of the Borrower, Parent, Holdings or any Parent Company that is a Subsidiary of Parent will not be deemed to constitute a Restricted Payment for purposes of this Section 7.6;
(f) noncash repurchases of Capital Stock deemed to occur upon exercise of stock options or similar equity incentive awards if such Capital Stock represents a portion of the exercise price of such options or similar equity incentive awards;
(g) the Borrower and its Restricted Subsidiaries may make Restricted Payments (i) to consummate the 2008 Transactions (including any Restricted Payments contemplated by the Merger Agreement) and (ii) without duplication of Restricted Payments made pursuant to the immediately preceding subclause (i), to Parent, Holdings or any Parent Company that is a Subsidiary of Parent in an amount not to exceed the Deferred Obligation Amount (as defined in the Merger Agreement) under the Merger Agreement;
(h) the Borrower may make Restricted Payments to allow Parent, Holdings or any Parent Company that is a Subsidiary of Parent to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Capital Stock of any such Person;
(i) so long as no Event of Default under Section 8.1(a) or 8.1(f) has occurred and is continuing, the Borrower and its Restricted Subsidiaries may make Restricted Payments to make payments provided for in the Management Agreement;
(j) to the extent constituting Restricted Payments, the Borrower and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 7.4, 7.5, 7.7 and 7.9;
(k) any non-wholly owned Restricted Subsidiary of the Borrower may declare and pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from its equity holders generally so long as the Borrower to or its respective Subsidiary which owns the ESOP equity interests in the Restricted Subsidiary paying such dividend receives at least its proportional share thereof (based upon its relative holding of the equity interests in the Restricted Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interest of such Restricted Subsidiary);
(l) the Borrower may make Restricted Payments using any amounts placed in escrow in connection with the 2008 Transactions;
(m) [Reserved];
(n) [Reserved];
(o) provided that no Default or Event of Default is continuing or would result therefrom, other Restricted Payments in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower50,000,000; and
(fp) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance connection with the financial covenants set forth Recapitalization Transactions (including but not limited to Restricted Payments from time to time to, or to permit Holdings or any Parent Company to make payments to, holders of outstanding stock options in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case respect of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered adjustments to the Administrative Agent a Pro Forma Compliance Certificate outstanding stock options in connection with respect thereto)the Recapitalization Transactions) in an amount not to exceed $650,000,000.
Appears in 1 contract
Samples: Credit Agreement (Booz Allen Hamilton Holding Corp)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary that is a Restricted Entity may make Restricted Payments to Persons the Borrower, any Subsidiary Guarantor and any other Person that own owns a direct Equity Interests 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) each Loan Party the Borrower and each Subsidiary Restricted Entity may declare and make dividend payments or other distributions payable solely in the common Equity Interests of such Person;
(c) the Borrower and Stripes Holdings may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option Restricted Payments to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Holdings in an aggregate amount not to exceed $30,000,000 the SHC Acquisition RP Availability at any time so long as (i) the proceeds of such Restricted Payments are used by Holdings solely for the purpose of acquiring and developing Drop Down MLP Assets or Drop Down Retail Assets and (ii) such acquisition by Holdings complies with Section 7.19(c);
(d) the Borrower may make Restricted Payments to Holdings in an aggregate amount not to exceed at any time in any fiscal year the General Dividend Availability (including after giving effect to any reductions to General Dividend Availability); provided, that (i) such Restricted Payments are used by Holdings solely for the purpose of a contemporaneous Restricted Payment by Holdings to its shareholders or a share repurchase of Equity Interests of Holdings and (ii) with respect to any Restricted Payment following the Borrowermaking of such Restricted Payments totaling $15,000,000 or more in the aggregate in any fiscal year, provided that within five Business Days of making the Restricted Entities are in compliance on a Pro Forma Basis with the Consolidated Fixed Charge Coverage Ratio after giving effect to such payment Restricted Payment;
(e) the Borrower receives a payment in cash and each Subsidiary may purchase, redeem or otherwise acquire its Equity Interests with the proceeds received from the ESOP as a payment substantially concurrent issue of principal, interest new common or other charges on Indebtedness of the ESOP to the Borrowersubordinated Equity Interests; and
(f) the Borrower and Stripes Holdings may declare and make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Tax Distributions.
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each the Borrower and any Subsidiary may make Restricted Payments to Persons that own in the form of issuance of Equity Interests in such Subsidiary, ratably according to their respective holdings (other than Disqualified Stock) of the type of Equity Interest in respect of which such Restricted Payment is being madeBorrower or any Subsidiary;
(b) each Loan Party and each Subsidiary the Borrower may declare and make dividend payments or other distributions payable solely in common Restricted Payments with respect to its Equity Interests payable in cash; provided that (i) such Restricted Payments are made in accordance with the Borrower’s dividend policy as in effect as of the Effective Date and any dividend policy in effect after the Effective Date consistent with past practice, (ii) after giving immediate effect to such PersonRestricted Payments on a Pro Forma Basis, the Borrower shall be in compliance with the covenants set forth in Sections 6.14(a), (b) and (c) and (iii) such Restricted Payments are not expressly prohibited pursuant to the terms of the Junior Subordinated Debentures and the related Debenture Indentures;
(c) the Borrower Subsidiaries may purchase, redeem, retire, defease or make other payments in Restricted Payments ratably with respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of their Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests make Restricted Payments pursuant to certain Restated Stock Transfer Restriction Agreements between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interestsits Subsidiaries; orand
(e) the Borrower may pay quarterly cash dividends repurchase (i) prior to the ESOP occurrence of a Qualifying IPO, its Equity Interest consisting of preferred stock and (ii) after the occurrence of a Qualifying IPO, any of its Equity Interests, in each case in the open market or in privately negotiated transactions so long as the Board of Directors of the Borrower shall have authorized such repurchase and the management of the Borrower shall have determined that such repurchase is in the best interest of the Borrower, in an aggregate amount from and after the Effective Date not to exceed the greater of (x) $300,000,000 and (y) the sum of $150,000,000 and 50% of the net proceeds received by the Borrower from any sale of its own Equity Interests from and after the Effective Date; provided, that at the time such repurchases are made each Regulated Insurance Company that is material to the Borrower and its Subsidiaries, taken as a whole (other than any Regulated Insurance Company that was acquired less than one year prior to the date of such payment) has a current financial strength rating by A.M. Best Company of not less that “A-” at the time of such repurchases to the extent such Regulated Insurance Company has an A.M. Best Company financial strength rating; provided, further that, in no event shall the aggregate repurchase price to be paid by the Borrower for Restricted Payments pursuant to clause (i) of this Section 6.07(e) during any Fiscal Year ending after the Effective Date exceed $75,000,000 or clause (ii) of this Section 6.07(e) during any Fiscal Year ending after the Effective Date exceed $300,000,000;
(f) the Borrower and any Subsidiary may make any payment (even if such payment is in the form of a Restricted Payment) to the Borrower or another Subsidiary that is required to be made with respect to or in connection with the Borrower’s Class C Preferred Stock and additional contributions from terms of any tax sharing, tax allocation or other similar tax arrangement or agreement entered into among the Borrower and its Wholly Owned Subsidiaries;
(g) the Borrower may enter into, exercise its rights and perform its obligations under Permitted Call Spread Swap Agreements;
(h) the Borrower may (x) make cash payments and/or deliveries of its common stock upon conversion of Permitted Convertible Notes pursuant to the ESOP terms thereof and (y) repay, repurchase or otherwise redeem, defease or make payments with respect to, the Convertible 2021 Notes and Convertible 2044 Notes;
(i) the Borrower may make interest payments in respect of Indebtedness under Permitted Convertible Notes;
(j) the Borrower and any Subsidiary may make payments to Parent or any direct or indirect parent thereof to allow such Person to pay (1)(A) administrative expenses and corporate overhead, franchise fees, public company costs (including SEC and auditing fees) and customary director fees; (B) premiums and deductibles in respect of directors and officers insurance policies and umbrella excess insurance policies obtained from third-party insurers and indemnities for the benefit of its directors, officers and employees or (C) reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering or any unsuccessful acquisition or strategic transaction by such Person, or (2)(A) any pass-through Taxes (including any distribution on account thereof) in an amount not to exceed the sum of the amount of the relevant U.S. federal, state, local and foreign income taxes that the Borrower and its Subsidiaries (including Specified Fee Business Holdco and its subsidiaries) would have paid (including for this purpose any income under Section 951 of the Code, income under Section 951A of the Code and any income of any entity (including partnerships) on which the Borrower and its subsidiaries are required to pay taxes) for such taxable period had the Borrower and such Subsidiaries been a stand-alone corporate group or (B) franchise and excise taxes, fees and other similar taxes and expenses in each case required to maintain its existence;
(k) the Borrower and any Subsidiary may purchase, repurchase, redeem or otherwise acquire (including by cancellation of Indebtedness), cancel or retire for value or make a payment in respect of Equity Interests (or make a Restricted Payment in an amount equal to the amount required by any direct or indirect parent of the Borrower or any of its Subsidiaries to fund any such purchase, repurchase, redemption or other acquisition, cancellation or retirement for value or payment in respect of its Equity Interests), held by any existing or former employees, management or directors of or consultants to the Borrower or such Subsidiary (or any direct or indirect parent of the Borrower or any Subsidiary), or their assigns, estates or heirs, in each case in connection with the repurchase or payment provisions under employee stock option or stock purchase agreements or other compensatory agreements approved by the board of directors or investment committee (or other applicable committee) of such Person, as applicable; provided that such purchases, repurchases, redemptions, acquisitions, cancellations or retirements pursuant to this clause (k) will not exceed $35,000,000 in the aggregate during any Fiscal Year (with any unused amounts in any given Fiscal Year being available to be applied pursuant to this clause (k) in any succeeding Fiscal Years); provided, that notwithstanding the definition of “Restricted Payments”, payments in cash in connection with the settlement of stock options and restricted stock units outstanding and in accordance with terms thereof as of the date of this Agreement to existing or former employees, management, directors or consultants of the Borrower or any Subsidiary, in each case, will not be deemed to constitute a Restricted Payment for purposes of this Section 6.07 or any other provision of this Agreement;
(l) the Borrower and any Subsidiary may make Restricted Payments to, or in an amount necessary for any Person to (x) pay its obligations under, or in connection with, and transaction costs, fees and expenses of such Person, or required to be paid or reimbursed by such Person, incurred under or in connection with, the Merger Agreement and the consummation of the transactions contemplated thereby and (y) without duplication of amounts payable pursuant to the foregoing clause (x), purchase, repurchase, redeem or otherwise acquire, cancel or retire for value or make a payment in respect of, Equity Interests of the Borrower on, or within 30 days after, the Effective Date, in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and80,000,000;
(fm) the Borrower may make other Restricted Payments so long as in an aggregate amount in each Fiscal Year not to exceed the greater of (ix) no Default exists immediately prior and after giving effect thereto $140,000,000 and (iiy) upon giving effect 50% of the Borrower’s Consolidated Net Income as of the last day of the most recent Fiscal Year for which Financials have been delivered (with any unused amounts in any given Fiscal Year being available to be applied pursuant to this clause (m) in the first two Fiscal Quarters of the immediately succeeding Fiscal Year); provided, that at the time such payments are made each Regulated Insurance Company that is material to the Borrower and its Subsidiaries, taken as a whole (other than any Regulated Insurance Company that was acquired less than one year prior to the date of such payment) has a current financial strength rating by A.M. Best Company of not less that “A-” at the time of such payments to the extent such Regulated Insurance Company has an A.M. Best Company financial strength rating; provided, further, that amounts otherwise available for application to make Restricted Payments pursuant to this clause (m) may instead be applied, to make (x) Investments in accordance with Section 6.04(s) and/or (y) junior debt payments in accordance with Section 6.13(a)(ii), which application will, to the extent being used to make Investments in accordance with such Section 6.04(s) or junior debt payments in accordance with Section 6.13(a)(ii), reduce the amounts otherwise available to make Restricted Payments with respect to such Restricted Payment, Fiscal Year pursuant to this clause (Am);
(n) the Loan Parties Borrower may make Restricted Payments in an amount not to exceed 50% of the net proceeds of any Disposition consummated in reliance on Section 6.05(h) (with any unused amounts in any given Fiscal Year being available to be applied pursuant to this clause (n) in the first two Fiscal Quarters of the immediately succeeding Fiscal Year); provided that (1) each Regulated Insurance Company that is material to the Borrower and its Subsidiaries, taken as a whole (other than any Regulated Insurance Company that was acquired less than one year prior to the date of such payment) has a financial strength rating by A.M. Best Company of not less that “A-” at the time of such payment to the extent such Regulated Insurance Company has an A.M. Best Company financial strength rating and (2) an equal, concurrent prepayment (on a dollar for dollar basis) of any outstanding Term Loans is made in connection therewith; provided, further, that amounts otherwise available for application to make Restricted Payments pursuant to this clause (n) may instead be applied to make (x) Investments in accordance with Section 6.04(s) and/or (y) junior debt payments in accordance with Section 6.13(a)(ii), which application will, to the extent being used to make Investments in accordance with Section 6.04(s) or junior debt payments in accordance with Section 6.13(a)(ii), reduce the amounts otherwise available to make Restricted Payments with the proceeds of such Disposition pursuant to this clause (n);
(o) the Borrower or any Subsidiary may make Restricted Payments in an amount necessary to pay the consideration to finance any Investment that, if made by the Borrower or any Subsidiary, would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a6.04; provided, that (x) such Restricted Payments under this clause (ando) shall be made substantially concurrently with the closing of such Investment and (y) Person making such Investment shall, promptly following the closing thereof, cause all property acquired in connection with such Investment to be contributed to the Borrower or one of its Subsidiaries, or the merger, consolidation or amalgamation of the Person formed or acquired in such Investment into the Borrower or one of its Subsidiaries, in order to consummate such Investment in a manner that causes such Investment to comply with the case applicable requirements of any Restricted Payment in excess of $10,000,000, Section 6.04 as if undertaken as a direct Investment by the Borrower shall have delivered or such Subsidiary;
(p) the Borrower and any Subsidiary may make Restricted Payments with (and to the Administrative Agent extent of) the proceeds received (on a Pro Forma Compliance Certificate with respect dollar for dollar basis) from a substantially concurrent issuance of its Equity Interests (other than any Specified Equity Contribution or any Disqualified Stock); and
(q) the Borrower may make Restricted Payments in amounts necessary to pay any fees, expenses and other amounts to be paid by the Borrower pursuant to the terms of the Interim Investors Agreement, dated as of March 1, 2018 by and among, Parent, certain Affiliates of Parent and any other Person party thereto)., as amended, supplemented or otherwise modified from time to time, in an aggregate amount not to exceed $15,000,000
Appears in 1 contract
Samples: Credit Agreement (Amtrust Financial Services, Inc.)
Restricted Payments. Declare or make, directly or indirectly, No Credit Party shall make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments payments of principal of and interest on intercompany loans and advances between Borrower and Guarantors to Persons that own Equity Interests in such Subsidiarythe extent permitted by Section 6.3, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party dividends and each Subsidiary may declare distributions by Subsidiaries of Borrower, (c) dividends and make dividend payments or other distributions by Borrower with respect to its Stock payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 additional shares of its Equity Interests or any warrantcommon Stock, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the stock option plans or other benefit plans for management or employees of Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP its Subsidiaries in an a maximum aggregate amount not to exceed $30,000,000 for any fiscal year 2,000,000, (e) the redemption of the BorrowerClass B shares of Delta Benefits Management Inc. held by Aon Group, Inc., pursuant to put and call rights existing on the date hereof (f) scheduled payments of interest with respect to Permitted Subordinated Indebtedness and any Permitted Refinancing thereof (or, subject to any applicable subordination terms, upon acceleration), and (g) scheduled payments of principal and interest with respect to, and payment of fees and other charges required by the terms of, the Post-Petition Skymiles Facility (or, subject to the Skymiles Intercreditor Agreement, upon acceleration), provided that within five Business Days no such payments shall be made from proceeds of making such payment Collateral other than Skymiles Collateral (A) from and after the Borrower receives a payment issuance of any Notice of Actionable Default and until the withdrawal of all pending Notices of Actionable Default or (B) during the period in cash from which the ESOP as a payment Excess Aggregate Cash on Hand is lower than the lesser of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(fx) $200 million and (y) the Borrower may make other aggregate amount of "Obligations" (as defined in the Post-Petition Skymiles Facility Documents) arising in connection with the Bankruptcy Loans (as defined in the Post-Petition Skymiles Facility Documents) outstanding at such time; provided that such Restricted Payments in clause (a) shall be permitted so long as (i) no Event of Default exists immediately prior has occurred and is continuing or would result after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis Payments and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)shall not have notified Borrower to stop such payments.
Appears in 1 contract
Samples: Secured Debtor in Possession Credit Agreement (Delta Air Lines Inc /De/)
Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except thatfor:
(a) each Subsidiary so long as no Default or Event of Default or material adverse alteration in the relationship between Borrowers and any member of the BK Group has occurred and is continuing or would result therefrom and so long as after giving pro forma effect thereto, the Fixed Charge Coverage Ratio is at least 1.10:1.00, EMAK may make Restricted Payments dividend payments to Persons the holders of its Preferred Stock; provided that own Equity Interests no such dividend payments shall be made (i) unless and until Lenders shall have received the Compliance Certificate due with the audited financial statements for the Fiscal Year ending on December 31, 2006 that certifies that Borrowers are in such Subsidiary, ratably according to their respective holdings full compliance with all of the type covenants under the Credit Agreement and that there are no Defaults or Events of Equity Interest Default that have occurred and are continuing or (ii) during the Inventory Borrowing Period; provided further that the aggregate amount of such payments (including dividends to Crown with respect to Preferred Stock) shall not exceed $1,500,000 in any twelve-month period (it being understood and agreed that the aggregate amount of such amount may exceed such $1,500,000 for such twelve month period if such excess payment is for the sole purpose of catching up on dividend payments with respect to the Preferred Stock that were not made in a timely manner in accordance with the Certificate of which Designation and if at the time of any such Restricted Payment excess payment, (A) all of the conditions required to make such $1,500,000 payment are also met with respect to such excess payment and (B) after giving effect to such excess payment, there is being madean Availability of at least $3,500,000 and Lenders shall have been delivered a Borrowing Base Certificate showing such Availability and a Compliance Certificate showing that Borrowers are in compliance with all of the other provisions of this Agreement after giving effect to such excess payment);
(b) each Loan Party and each Subsidiary Borrowers may declare and make dividend cash payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP HK Subsidiaries in an aggregate amount not to exceed exceeding the lesser of (i) $30,000,000 for 5,000,000 in any fiscal year Fiscal Year (and in any event not exceeding $1,000,000 in any of the Borrower, provided that within five Business Days of making such payment first three Fiscal Quarters and $2,000,000 in the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP fourth Fiscal Quarter) and (ii) an amount equal to the Borroweroperating costs (including Taxes and Capital Expenditures) incurred and payable by HK Subsidiaries during such Fiscal Year (or such Fiscal Quarter, as applicable); and
(fc) the Borrower Borrowers may make other Restricted Payments so long as (i) no Default exists immediately a loan to UK Subsidiaries on or prior and after giving effect thereto and (ii) upon giving effect to June 30, 2006 in an aggregate amount not exceeding $500,000 for the sole purpose of such Restricted Payment, (A) UK Subsidiaries paying amounts to settle working capital adjustment claims arising from the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case acquisition of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Megaprint Group Limited.
Appears in 1 contract
Restricted Payments. Declare or makeThe Borrower shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatPayment after the Amendment Effective Date except:
(a) repurchases of Syndicated Interests in an aggregate amount in any Fiscal Year up to $20,000,000 plus the proceeds received during such Fiscal Year of any resale of such repurchased Syndicated Interests;
(b) each Restricted Subsidiary may make Restricted Payments to Persons the Borrower and any other Restricted Subsidiary and any other Person that own owns a direct Equity Interests Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) if at the Borrower may purchase, redeem, retire, defease or make other payments in respect time of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted PaymentPayment on a pro forma basis, (Ai) the Loan Parties Senior Secured Leverage Ratio is equal to or less than 2.00:1.00, (ii) no Default or Event of Default shall have occurred and be continuing and (iii) the Borrower and its Restricted Subsidiaries would be in compliance with the financial covenants set forth in Section 8.11 6.01, Restricted Payments to Persons that are not Loan Parties;
(d) if at the time of and, after giving effect to such Restricted Payment on a Pro Forma Basis pro forma basis, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Borrower and its Restricted Subsidiaries would be in compliance with the financial covenants set forth in Section 6.01, Restricted Payments to Persons that are not Loan Parties in an aggregate amount not exceeding (A) $200,000,000, plus (B) if, after giving effect to such Restricted Payment on a pro forma basis, the Consolidated Net Leverage Ratio as so calculated is would not be greater than the Leverage Ratio set forth in Section 6.01(b), additional Restricted Payments up to the Available Amount at least 0.25 such time;
(e) repurchases by the Borrower of its common stock from holders thereof of less than 100 shares of its common stock;
(f) the maximum then permitted Borrower may make scheduled cash dividend payments at the times and to the extent required by the terms of any agreement evidencing or governing the Series A Preferred Stock; and
(g) so long as (i) no Default or Event of Default shall have occurred and be continuing at the time thereof or would result therefrom and (ii) after giving effect thereto on a pro forma basis, the Leverage Ratio would not be greater than 3.00:1.00, repurchases, redemptions and/or other acquisitions of all or any portion of the Series A Preferred Stock with (A) cash on hand or (B) proceeds of the Loans or the issuance or proceeds of other Indebtedness, the incurrence of which is not prohibited under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)6.03.
Appears in 1 contract
Samples: Credit Agreement (Healthsouth Corp)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock;
(i) the Borrower may make Restricted Payments in an aggregate amount not exceeding (i) $40,000,000 in any Fiscal Year plus, (ii) the Available Amount; provided that, subject to Persons that own Equity Interests in such SubsidiarySection 1.04, ratably according to their respective holdings at the time of the type of Equity Interest in respect of which such any Restricted Payment is being made;
pursuant to this clause (b)(ii) made in reliance on clause (b) each Loan Party of the definition of Available Amount and each Subsidiary may declare immediately after giving effect thereto, (x) no Event of Default shall have occurred and make dividend payments or other distributions payable solely be continuing, (y) the Borrower shall be in common Equity Interests of such Personcompliance with Section 7.11 on a Pro Forma Basis and (z) the Total Leverage Incurrence Test (calculated on a Pro Forma Basis) shall be satisfied;
(c) the Borrower may purchase, redeem, retire, defease repurchase restricted stock from its employees at the lower of cost or make other payments in respect market pursuant to an arrangement approved by the board of directors of the 2,598 shares Borrower (each, a “Stock Repurchase”); provided that (i) at the time of its Equity Interests or any warrantsuch Stock Repurchase and immediately after giving effect thereto, right or option no Default shall have occurred and be continuing and (ii) the Borrower shall be compliant on a Pro Forma Basis with each of the covenants set forth in Section 7.11 as of the last day of the most recently ended fiscal quarter for which financial statements are required to acquire such Equity Interests be delivered pursuant to certain Section 6.01(a) and (b) after giving effect to any such Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing DateRepurchase;
(d) no Default exists so long as immediately prior and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing, the Borrower may purchase, redeem, retire, defease redeem or acquire any Capital Stock of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment 50,000,000;
(e) the Borrower receives may make unlimited Restricted Payments so long as, (i) on Pro Forma Basis the Borrower is in compliance with Section 7.11, (ii) immediately after giving effect thereto, no Event of Default has occurred and is continuing and (iii) the Consolidated Leverage Ratio (calculated on a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP Pro Forma Basis) shall be no greater than 3.50 to the Borrower1.00; and
(f) the Borrower may make other payment of any Restricted Payments so long as (i) no Default exists immediately prior and Payment within 60 days after giving effect thereto and (ii) upon giving effect to the date of declaration or announcement of such Restricted Payment, as the case may be, if at the date of declaration or notice, the Restricted Payment would have complied with Section 7.07 (Aassuming the declaration or giving of the notice of such dividend or other distribution would have been deemed to be a Restricted Payment at such time); provided that nothing herein shall be deemed to prohibit (x) the Loan Parties would be making of Restricted Payments by any Restricted Subsidiary of the Borrower to the Borrower or any other Restricted Subsidiary of the Borrower or, if applicable, any minority shareholder of such Restricted Subsidiary (in compliance accordance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis percentage of the relevant class of Capital Stock of such Restricted Subsidiary owned by such minority shareholder) and (By) repurchases of relevant class of Capital Stock deemed to occur as a result of the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than surrender of such Capital Stock for cancellation in connection with the maximum then permitted under Section 8.11(a) (andexercise of stock options, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)warrants or other securities convertible into or exchangeable for Capital Stock.
Appears in 1 contract
Samples: Credit Agreement (HMS Holdings Corp)
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare, pay or make, or agree to declare, pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments declare and pay dividends with respect to its Equity Interests payable solely in respect of the 2,598 additional shares of its Equity Interests or any warrantcommon stock, right or option (b) Subsidiaries may declare and pay dividends and make other distributions, in each case ratably with respect to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of their Equity Interests, (c) so long as in effect on the Closing Date;
(d) no Default exists shall exist either immediately prior and before or immediately after giving effect theretoto such Restricted Payment, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists if immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, the Senior Secured Leverage Ratio (Acalculated based on EBITDA for the most recently ended period of four fiscal quarters of the Borrower for which financial statements are available (the “Reference EBITDA”)) is less than 2.50:1.00, in unlimited amounts, or (ii) if immediately after giving effect to such Restricted Payment, the Senior Secured Leverage Ratio (calculated based on the Reference EBITDA) is greater than or equal to 2.50:1.00, in amounts which, when added to all other Restricted Payments made by the Borrower pursuant to this clause (c) during the one year period ending on the date of such Restricted Payment, do not exceed $35,000,000, (d) the Loan Parties would be Borrower and its Subsidiaries may make Restricted Payments to the Borrower or a Wholly-Owned Subsidiary in compliance connection with any Permitted Share Sale Transaction, (e) the financial covenants set forth Borrower may make Restricted Payments pursuant to and in Section 8.11 on a Pro Forma Basis accordance with stock option plans or other benefit plans for management and employees of the Borrower and its Subsidiaries and (Bf) the Consolidated Net Leverage Ratio so long as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any no Default shall exist either immediately before or immediately after giving effect to such Restricted Payment in excess of $10,000,000Payment, the Borrower or any Subsidiary may make Restricted Payment to, directly or indirectly, purchase its Equity Interests from present or former officers, directors, agents or employees (or their estates, family members or former spouses) of Borrower or any Subsidiary upon the death, disability, retirement or termination of the applicable officer, director, agent or employee, provided that the aggregate amount of payments pursuant to this clause (f) in any fiscal year shall have delivered to not exceed $5,000,000.
(n) Section 6.11 of the Administrative Agent a Pro Forma Compliance Certificate Credit Agreement is hereby deleted and replaced with respect thereto).the following:
Appears in 1 contract
Samples: Credit Agreement (Catamaran Corp)
Restricted Payments. Declare The Company shall not, and shall not permit or makesuffer any Subsidiary to, directly or indirectlyindirectly pay, declare, order, make or set apart any sum for any Restricted Payment, except that the Company may make, pay or incur any obligation (contingent set apart during each calendar quarter one or otherwise) to do so, except thatmore Restricted Payments if:
(a) each Subsidiary may make such Restricted Payments are in an aggregate amount not exceeding the amount by which Available Cash with respect to Persons the immediately preceding calendar quarter exceeds any amount contributed to Available Cash with respect to such immediately preceding calendar quarter by any Subsidiary if and to the extent that own Equity Interests in the payment of such amount as a dividend or distribution to the Company has not been made and is not at the time permitted by the terms of such Subsidiary's charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary, ratably according provided that in determining Available Cash with respect to their respective holdings such immediately preceding calendar quarter, the Company will include in the amount of reserves established during such quarter pursuant to clause (ii)(d) of the type definition of Equity Available Cash an amount not less than (i) 50% of the aggregate amount of all interest in respect of the Other Senior Notes to be paid on the interest payment date immediately following such immediately preceding calendar quarter, (ii) 100% of the aggregate amount of all interest in respect of the Loans to be paid on the respective Interest Payment Dates for such Loans, (iii) 25% of the aggregate amount of all principal in respect of the 1989 Notes and the Series D Notes scheduled to be paid (determined in accordance with the Principal Repayment Proviso) during the 12 calendar months immediately following such immediately preceding calendar quarter, (iv) for the final two full calendar quarters preceding the Revolving Credit Termination Date, 25% of the average Effective Amount of Revolving Loans, Swingline Loans and L/C Obligations outstanding at any time during such quarter of computation, and (v) 100% of the aggregate amount of all interest in respect of the loans outstanding under the 364-Day Revolving Credit Agreement to be paid on the respective interest payment dates for such loans, and the Company will not reduce the amount of the reserves so included, in determining Available Cash for any calendar quarter subsequent to such immediately preceding calendar quarter pursuant to clause (i)(c) of the definition of Available Cash, unless and until (A) the amount of interest or principal in respect of which such Restricted Payment is being made;amount has been reserved has in fact been paid and (B) in the case of clause (iv) of this subsection 8.13(a), the amount of the reserves so included exceeds fifty percent (50%) of the Effective Amount of Revolving Loans, L/C Obligations and Swingline Loans at the end of such quarter of computation; and
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease to any such proposed action no condition or event shall exist which constitutes an Event of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest Default or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (andMaterial Default. The Company will not, in the case of any event, directly or indirectly declare, order, pay or make any Restricted Payment except in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)cash.
Appears in 1 contract
Restricted Payments. Declare The Borrower will not, nor will it permit any other Loan Party to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(ci) the Borrower may purchase, redeem, retire, defease or make other payments declare and pay dividends with respect to its Equity Interests payable solely in respect of the 2,598 additional shares of its Equity Interests or any warrantcommon stock, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restatedii) between the Borrower and certain owners Subsidiaries of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower declare and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP ratably with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrowertheir capital stock, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(fiii) the Borrower may make other Permitted Equity Issuances, and (iv) the Borrower may declare and pay Restricted Payments so long in respect of the Second Lien Term Loan Facility as permitted by the terms of Section 2.09 hereof (to the extent permitted under the terms and provisions of the Term Loan Intercreditor Agreement) and such other payments or prepayments of Subordinated Debt as may be permitted under the terms and provisions of the Term Loan Intercreditor Agreement or any other applicable Subordination Agreement. Without limiting the foregoing, within thirty (30) days after the end of any Semi-Annual Period, beginning with the Semi-Annual Period ending in the second fiscal quarter of the 2005 fiscal year, to the extent permitted under the terms and provisions of the Term Loan Intercreditor Agreement, the Borrower may prepay the Second Lien Term Loan Facility to the extent of Excess Cash Flow for (i) the most recently ended Semi-Annual Period, provided that the Borrower delivers an officer's certificate no less than five (5) Business Days prior to the date of such voluntary prepayment certifying and providing calculations in reasonable detail illustrating the following: the aggregate of such voluntary prepayments paid by the Borrower, in the aggregate from and after the Effective Date, shall not exceed $5,000,000 until such time as the Total Leverage Ratio is less than 3.00 to 1.00 and the unpaid principal balance of the Second Lien Term Loan Facility (without giving effect to the proposed voluntary prepayment of the Second Lien Term Loan Facility) is less than or equal to $15,000,000; no Default exists immediately prior or Event of Default shall have occurred and be continuing or, on a pro forma basis, would reasonably be expected to result from such voluntary prepayment; the Borrower can demonstrate, on a pro forma basis, after giving effect thereto to such prepayment that the Total Leverage Ratio does not exceed 3.50 to 1.00; the Borrower demonstrates to the reasonable satisfaction of the Administrative Agent and the Required Lenders that, after giving effect to the applicable voluntary prepayment, the sum of the amounts available for borrowing under this Agreement plus cash and cash equivalents owned by Borrower and its Subsidiaries shall equal or exceed (i) $10,000,000 at all such times as the Total Leverage Ratio is equal to or greater than 3.00 to 1.00 and (ii) upon giving effect to $7,000,000 at all such Restricted Payment, (A) times as the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Total Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered 3.00 to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)1.00.
Appears in 1 contract
Samples: Credit Agreement (Lubys Inc)
Restricted Payments. Declare The Borrower shall not, nor shall Parent or makeany Subsidiary to, directly declare or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that:
(a) (i) Parent may declare or make cash distributions to its equity holders in an aggregate amount not to exceed the greater of (x) ninety-five percent (95%) of Parent’s Adjusted FFO for each Fiscal Quarter ending thereafter, or (y) the amount necessary for Parent to be able to make distributions required to maintain its status as a REIT and to avoid the imposition of any federal or state income tax, and to avoid the imposition of the excise tax described by Section 4981 of the Code, in each case on Parent; provided further that, in either case, (A) during the continuance of an Event of Default, Restricted Payments made pursuant to clause (a) shall not exceed the amounts described in clause (y), and (B) following a Bankruptcy Event with respect to the Borrower or the acceleration of the Obligations, Parent shall not make any cash distributions;
(b) the Borrower may make Restricted Payments ratably to the holders of its Equity Interests to permit Parent to make the Restricted Payments permitted under clause (a) above;
(c) each Subsidiary may make Restricted Payments ratably to Persons that own the holders of its Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeInterests;
(bd) each Loan Party and each Subsidiary Parent, the Borrower or any Guarantor may declare and make dividend payments or other distributions payable solely in the common Equity Interests equity interests or other equity interests of such Person;
entity including (ci) the Borrower may purchase“cashless exercises” of options granted under any share option plan adopted by such entity, redeem, retire, defease (ii) distributions of rights or make other payments equity securities under any rights plan adopted by such entity and (iii) distributions (or effect stock splits or reverse stock splits) with respect to its equity interests payable solely in respect of the 2,598 additional shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Dateequity interests;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) Parent, the Borrower and each Guarantor may pay quarterly make cash payments in lieu of the issuance of fractional shares representing insignificant interests in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of Parent, the Borrower or any Subsidiary;
(f) so long as no Change of Control results therefrom, Parent, the Borrower and each Subsidiary may make Restricted Payments in connection with the implementation of or pursuant to any retirement, health, stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of compensation;
(g) so long as no Change of Control results therefrom, the Borrower and each Subsidiary that is a Guarantor may make dividends or distributions to allow Parent to make payments in connection with share purchase programs, to the ESOP with respect to extent not otherwise prohibited by the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year terms of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerthis Agreement; and
(fh) the Borrower Parent may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect exercise any redemption or conversion rights with respect to such Restricted Payment, (A) the Loan Parties would be its Equity Interests in compliance accordance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) terms of the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of governing documents setting out any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)such rights.
Appears in 1 contract
Samples: Credit Agreement (Alpine Income Property Trust, Inc.)
Restricted Payments. Declare or make, directly or indirectly, No Credit Party shall make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:except
(a) each Subsidiary may make Restricted Payments intercompany loans and advances between Borrowers to Persons that own Equity Interests 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;extent permitted by Section 6.3,
(b) each Loan Party dividends and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests by Subsidiaries of any Borrower paid to such Person;Borrower,
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;employee loans permitted under Section 6.4(b),
(d) no Default exists immediately prior payments of principal and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any interest of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; orIntercompany Notes issued in accordance with Section 6.3(a)(x);
(e) dividends in the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred form of common Stock and additional contributions from the Borrower to the ESOP of Omni;
(f) payments in an aggregate amount not to exceed $30,000,000 50,000 for any fiscal year the repurchase, retirement or surrender of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment preferred Stock described in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; andDisclosure Schedule 6.13;
(f) the Borrower may make other Restricted Payments so long as (i) scheduled payments of interest and principal on Trussco Note 1 and Trussco Note 2 (other than on account of the Pledged Trussco Note Interest) (provided, that no Default exists immediately prior and such payments of interest or principal shall be made unless, after giving effect thereto and (ii) upon giving effect to such Restricted Paymentpayment, Revolver Credit Availability (Aas determined on a pro forma basis, with trade payables being paid currently and in the ordinary course of business but on terms not to exceed 90 days, and expenses and liabilities being paid in the ordinary course of business and without acceleration of sales) shall be at least $2,000,000); (ii) the Loan Parties would be in compliance with payment of the financial covenants set forth in Section 8.11 on a Pro Forma Basis Trussco Subordinated Obligations to the extent permitted under the Trussco Subordination Agreement; and (Biii) scheduled payments of principal and interest on the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than Junior Secured Facility to the maximum then extent that such payments are permitted under the Term B Subordination Agreement;
(h) scheduled payments of interest and principal on Preheat Seller Note No. 1 and Preheat Seller Note No. 2 to the extent permitted under the Preheat Subordination Agreement; provided, that the sole source of any such payments of principal shall be the proceeds of Stock issuances in respect of which the Borrowers have made the prepayment of the Term A Loan required pursuant to Section 8.11(a1.3(b)(ii). For the avoidance of doubt, and without limiting the generality of the foregoing provisions of this clause (h), Borrowers may not make any payments in respect of the Preheat Seller Notes with funds from any other source (including but not limited to cash from operations of the Borrowers or debt) (andwithout the prior consent of the Requisite Lenders; provided, in the case that no Event of Default has occurred and is continuing or would result after giving effect to any Restricted Payment in excess of $10,000,000pursuant to clauses (e), the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto(f), (g) or (h) above.
Appears in 1 contract
Restricted Payments. Declare or makeNeither Borrower will, directly or indirectlynor will either Borrower permit any of its Subsidiaries to, make any Restricted Payment or enter into any agreement which obligates any such Persons to make any such Restricted Payment; provided, that so long as no Default or incur any obligation (contingent Event of Default has occurred which is continuing or otherwise) to do sowill result therefrom, except that:
(a) each Subsidiary TEL may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect pay dividends on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C TEL Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 1,000,000 in any Fiscal Year, (b) TEL may repurchase shares of its common stock from individual shareholders holding less than 100 shares for an aggregate consideration not exceeding $25,000 in any fiscal year Fiscal Year, (c) subject toSection 8.1 TEL and its Subsidiaries may complete the Permitted Redemption of 1997 Notes and 9 3/4% Notes and may otherwise purchase, repurchase, redeem, retire or defease any Debt with respect to which TEL or any of its Subsidiaries is the obligor within eighteen (18) months of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as scheduled maturity thereof (i) no Default exists immediately prior with proceeds of Debt securities (other than the Obligations) issued to Persons other than TEL and its Subsidiaries after giving effect thereto the Closing Date or with proceeds of equity securities issued to Persons other than TEL and its Subsidiaries after the Closing Date (such Restricted Payments to be made substantially simultaneously with the receipt of such proceeds except with respect to the Permitted Redemption of 1997 Notes and 9 3/4% Notes), and (ii) upon giving effect with proceeds of the Loan and from other available cash; provided, that the aggregate amount of all Restricted Payments made pursuant to such this clause (c) (ii) shall not exceed the Restricted PaymentPayment Limit. As used herein, "Restricted Payment Limit" means (w) $50,000,000 minus (x) the aggregate amount of the Restricted Payments made pursuant to clause (ii) ofSection 8.2(c) on or after the Closing Date, (Ay) minus $9,005,000 in respect of repurchases of 1997 Notes prior to the Loan Parties would be Closing Date, plus (z) net proceeds to TEL and its Subsidiaries of Debt and equity securities (other than the Obligations) issued to Persons other than TEL and its Subsidiaries after the Closing Date and not utilized to make Restricted Payments pursuant to clause (i) ofSection 8.2(c); provided, that (i) in compliance with no event shall this clause (z) operate to increase the financial covenants set forth in Section 8.11 on a Pro Forma Basis Restricted Payment Limit to an amount greater than $50,000,000 at any time, and (Bii) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case proceeds of any Restricted Payment issue of Debt or equity securities in excess of the amount necessary to replenish the Restricted Payment Limit to $10,000,000, 50,000,000 shall not be carried forward and utilized to replenish the Borrower shall have delivered Restricted Payment Limit at any date subsequent to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)date of receipt of such proceeds."
Appears in 1 contract
Samples: Credit Agreement (Triton Energy LTD)
Restricted Payments. Declare or make, directly or indirectly, No Loan Party shall make any Restricted Payment, other than to the extent constituting (i) Permitted Investments, (ii) a Restricted Payment for the payment of management fees or incur advisory fees to any obligation (contingent Loan Party or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Excluded Subsidiary, ratably according including any allocation or sharing of overhead, selling, general or administrative expenses, taxes or other shared business expenses, provided that to their respective holdings of the type of Equity Interest in respect of which extent such Restricted Payment is being made;
made to an Excluded Subsidiary, such payment shall not, in the aggregate (bunless approved by Agent in writing in its sole discretion), exceed *** per fiscal year and serve some demonstrable business justification in accordance with the nature of the Loan Parties’ business as set forth on Schedule 7.6.; (iii) each a Restricted Payment between Excluded Subsidiaries; (iv) a Restricted Payment between Loan Parties, (v) so long as no Default or Event of Default is in effect, a Restricted Payment to an Excluded Subsidiary in connection with a capital call made by an Excluded Subsidiary (whether or not any Loan Party and each had the right to cause such Excluded Subsidiary may declare and to make dividend payments or other distributions payable solely in common Equity Interests of such Person;
capital call) provided (c1) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire all such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP Restricted Payments are in an aggregate amount not to exceed $30,000,000 for any *** per fiscal year and (2) such capital call serve some demonstrable business justification in accordance with the nature of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP Loan Parties’ business as a payment of principal, interest or other charges set forth on Indebtedness of the ESOP to the BorrowerSchedule 7.6; and
and (fvi) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect or Event of Default is in effect, a Restricted Payment to an Excluded Subsidiary that is wholly-owned by a Loan Party in connection with the leasing of real property provided such Restricted Payment, (A) lease payments serve some demonstrable business justification in accordance with the nature of the Loan Parties would be Parties’ business as set forth on Schedule 7.6, and which shall include without limitation any lease payments made in compliance connection with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Permitted Transaction. 7.9 [Reserved].
Appears in 1 contract
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock (including the issuance of shares of its common stock pursuant to outstanding warrants), (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees, consultants and contractors of the Borrower and its Subsidiaries, (d) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower or another Subsidiary (provided that any Subsidiary Guarantor may purchase, redeem, retire, defease or only make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option Restricted Payments to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interestsor another Subsidiary Guarantor), as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower or any Subsidiary may pay quarterly cash dividends make Restricted Payments pursuant to any Earn Out Obligations or otherwise in connection with acquisitions completed before the Effective Date or which are permitted hereunder when due and payable, (f) [intentionally omitted], (g) the Borrower may make payments to the ESOP with Summit Investors in respect of breaches of representations, warranties, and covenants contained in the Summit Sale Documents to the Borrower’s Class C Preferred extent required thereunder, including payments required under the “Subsidiary Guaranty” made pursuant to Section 6F of the Summit Stock Purchase Agreement and additional contributions from (h) the Borrower and its Subsidiaries may make any other Restricted Payment so long as no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would arise upon giving effect (including giving effect on a Pro Forma Basis) thereto and the ESOP in an aggregate amount not to exceed $30,000,000 for of all such Restricted Payments during any fiscal year of the Borrower, Borrower does not exceed $10,000,000; provided that within five Business Days of making such payment Dollar limitation shall not be applicable if at the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness time of the ESOP to the Borrower; and
(f) the Borrower may make other making of such Restricted Payments so long as (i) no Default exists Payment and immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (BBasis) thereto, the Consolidated Net Leverage Ratio as so calculated is at least 0.25 equal to or less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered 2.00 to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)1.00.
Appears in 1 contract
Samples: Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Restricted Payments. Declare No Obligor shall, nor shall it permit any of its Restricted Subsidiaries to, declare, order, pay any sum for, or make, directly set apart assets for a sinking or indirectlyother analogous fund for, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payment except thatfor:
(a) in the case of any Restricted Subsidiary, the declaration and payment of dividends or other distributions to its equity holders, so long as any such dividends or other distributions to the Borrower and other Restricted Subsidiaries that are equity holders are at least pro rata to the relevant portion of equity held by the Borrower and such other Restricted Subsidiaries;
(b) after any issuance by the Borrower of its Equity Interests after the date hereof, Restricted Payments by the Borrower to holders of its Equity Interests in an amount not exceeding 10% of the aggregate net cash proceeds thereof; provided that immediately prior to, and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom;
(c) Restricted Payments in an aggregate amount pursuant to this clause (c) equal to the sum of 50% of Excess Cash Flow for each Fiscal Year beginning with the Fiscal Year ended on or about December 31, 2014, for which financial statements pursuant to Section 5.01(a) have theretofore been delivered; provided that immediately prior to, and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom;
(d) any Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiarythe Borrower, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party Borrower’s other Subsidiaries and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares holders of its Equity Interests or equity securities, provided that the portion of any warrant, right or option Restricted Payments paid to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between holders of its equity securities other than the Borrower and certain owners its Subsidiaries is not greater than the percentage of Equity Interests, as in effect on the Closing Dateequity securities of such Subsidiary owned by such other Persons;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly (i) repurchase Equity Interests upon the exercise of stock options if such Equity Interests represent a portion of the exercise price of such options and (ii) make cash dividends to payments in lieu of the ESOP issuance of fractional shares representing insignificant interests in the Borrower in connection with respect to the exercise of warrants, options or other securities convertible into or exchangeable for capital stock in the Borrower’s Class C Preferred Stock and additional contributions from ; provided that the aggregate principal amount of all such Restricted Payments permitted by this clause (e) shall not exceed (x) $10,000,000 in any fiscal year prior to an IPO or (y) 5% of the total market capitalization of the Borrower following an IPO;
(f) the Borrower may repurchases its Equity Interests owned by employees of the Borrower or its Subsidiaries or make payments to employees of the ESOP Borrower or its Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $30,000,000 for 10,000,000 in any fiscal year of and $30,000,000 in the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borroweraggregate; and
(fg) the Borrower may make so long as no Default shall have occurred and be continuing or be caused thereby, other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) not permitted by the Loan Parties would be foregoing provisions of this Section in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess an aggregate amount of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)15,000,000.
Appears in 1 contract
Restricted Payments. Declare No Credit Party shall, and no Credit Party shall suffer or makepermit any of its Subsidiaries to, directly (i) declare or indirectlymake any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any Stock or Stock Equivalent, (ii) purchase, redeem or otherwise acquire for value any Stock or Stock Equivalent now or hereafter outstanding or (iii) make any payment or prepayment of principal of, premium, if any, interest, fees, redemption, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, Subordinated Indebtedness (the items described in clauses (i), (ii) and (iii) above are referred to as “Restricted PaymentPayments”); except that any Wholly-Owned Subsidiary of the Borrower may declare and pay dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower, or incur any obligation (contingent or otherwise) to do so, and except that:
(a) each Subsidiary the Borrower may make Restricted Payments to Persons that own Equity Interests its Special Purpose Subsidiary in such Subsidiaryan aggregate amount of $25,000,000 during the period from the Amendment and Restatement Date until December 31, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;2010; and
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
addition to the permitted Restricted Payments set out in paragraph (c) a), the Borrower may purchase, redeem, retire, defease or make other payments Restricted Payments in respect an aggregate amount of $15,000,000 during the 2,598 shares period from the Amendment and Restatement Date until the Revolving Termination Date provided that it has $8,000,000 of its Equity Interests or any warrant, right or option Availability both prior to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior Restricted Payment and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower such Restricted Payment and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year provided all of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; andfollowing conditions are satisfied:
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior or Event of Default has occurred and after giving effect thereto and is continuing or would arise as a result of such Restricted Payment;
(ii) upon after giving effect to such Restricted Payment, (A) the Loan Credit Parties would be are in compliance on a pro forma basis with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and Article VI, recomputed for the most recent Fiscal Month for which financial statements have been delivered;
(Biii) the Consolidated Net Leverage Ratio as so calculated aggregate Restricted Payments permitted under paragraph (b) during the term of this Agreement shall not exceed $15,000,000; and
(iv) after giving effect to such Restricted Payment, Availability is at least 0.25 not less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).8,000,000;
Appears in 1 contract
Samples: Credit Agreement (Solo Cup CO)
Restricted Payments. Declare or makemake any Restricted Payment, or permit any of its Subsidiaries so to do, except as follows:
(a) PRIOR TO THE EXISTING ARCH SENIOR NOTE TERMINATION DATE. Prior to the Existing Arch Senior Note Termination Date, whether or not any of the Parent Discount Notes are outstanding or the Existing Discount Indenture is in effect, the following Restricted Payments shall be permitted:
(i) any Subsidiary of Arch may, directly or indirectly, make Restricted Payments to Arch or any Restricted Paymentof its Subsidiaries (other than Xxxxxx Investments until such time as Xxxxxx Investments ceases to be an Unrestricted Subsidiary under and as defined in the Existing Arch Senior Indentures, or incur any obligation (contingent or otherwise) has become a Subsidiary Guarantor and has granted a security interest to do so, except that:the Collateral Agent in its assets);
(aii) each Subsidiary Arch and its Subsidiaries may make Restricted Payments to Persons that own Equity Interests the Parent for purposes of enabling the Parent, as a consolidated taxpayer to pay Taxes, pursuant to the terms set forth in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeTax Sharing Agreement;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(ciii) the Borrower and its Subsidiaries may purchase, redeem, retire, defease pay Management Fees to Arch in any fiscal quarter (in an aggregate amount not exceeding 1 1/2% OF the net revenue of Arch and its Subsidiaries for the immediately preceding four fiscal quarters ending with the latest fiscal quarter for which Arch has filed a quarterly report with the SEC on form 10-Q or make other payments an annual report on form 10-K) in respect of accordance with the 2,598 shares terms set forth in the Management Agreement for services rendered to the Borrower or any of its Equity Interests or any warrantSubsidiaries, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements provided that (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(di) no Default exists immediately prior or Event of Default has occurred or is continuing (provided that during the continuance of a Default or an Event of Default, the Management Fee may be accrued, but not paid) and (ii) any such Management Fee accrued or paid shall be treated as an operating expense and deducted from the calculation of Operating Cash Flow; and
(iv) provided that no Default or Event of Default shall exist both before and after giving effect thereto, after the Borrower may purchase, redeem, retire, defease any of its Equity Interests has delivered financial statements pursuant to certain Restated Stock Transfer Restriction Agreements between Section 7.1(a) or (b) that demonstrate that the Borrower Total Leverage Ratio has been less than 3.00:1:00 for the immediately preceding two consecutive fiscal quarters, and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest Total Leverage Ratio would not be greater than or other charges on Indebtedness of the ESOP equal to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and 3.00:1.00 after giving effect thereto and (ii) upon giving effect to such Restricted Paymentthereto, (A) Arch may make any Restricted Payments to the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis Parent and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of Parent may make any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered Payments to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)its shareholders.
Appears in 1 contract
Samples: Credit Agreement (Arch Communications Group Inc /De/)
Restricted Payments. Declare The Loan Parties shall not, nor shall they permit any Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment except: (a) unless (i) after giving effect to the making of such Restricted Payment, no Default or incur Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in actual and pro-forma compliance with the covenants set forth in Section 6.03, as calculated as of the most recently ended Fiscal Quarter for which the Borrower is then required to have delivered quarterly financial statements in accordance with Section 6.01(a) or (b) as if such Restricted Payment and all related transactions (including the making of any obligation Credit Extensions hereunder in connection therewith) had been consummated as of the last day of such Fiscal Quarter, (contingent or otherwiseiii) Excess Liquidity shall be at least $15,000,000 on each day from the 30th day prior to do sothe making of such Restricted Payment through and including the 30th day after the making of such Restricted Payment, except that:
as calculated on a pro forma basis as if such Restricted Payment (aincluding the making of any Credit Extensions hereunder in connection therewith) had been made on the 30th day prior to the actual making thereof, (iv) the aggregate amount of Restricted Payments made by the Loan Parties during any Fiscal Year shall not exceed $25,000,000; provided, that so long as the Borrower maintains Excess Liquidity greater than the Excess Liquidity Requirement on each day from the 30th day prior to the making of any such Restricted Payment through and including the 30th day after the making of such Restricted Payment, as calculated on a pro forma basis as if such Restricted Payment (including the making of any Credit Extensions hereunder in connection therewith) had been consummated on the 30th day prior to the actual making thereof, the amount of such Restricted Payment shall not count against the annual $25,000,000 limitation in this clause (iv), and (v) before and after giving effect to the making of such Restricted Payment, Total Revolving B Outstandings shall be $0; and (b) each Subsidiary may make Restricted Payments to Persons any Person that own Equity Interests owns Capital Securities in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest Capital Securities in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).
Appears in 1 contract
Samples: Credit Agreement (Trex Co Inc)
Restricted Payments. Declare or makeNo Obligor will, directly or indirectlynor will it permit any of its Restricted Subsidiaries to, make any Restricted PaymentPayments at any time during any fiscal year, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary provided that PGI may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as as:
(i) no Default exists immediately prior shall have occurred and be continuing, and after giving effect to such Restricted Payment no Default shall have occurred and be continuing; and
(ii) the aggregate amount of such Restricted Payments made by PGI during the period (the "Determination Period") from and including December 31, 1996 to and including the date of such Restricted Payment shall not exceed an amount equal to the sum of (x) U.S. $25,000,000 plus 50% of Consolidated Net Income (to the extent positive) for each full fiscal year included in the Determination Period minus (y) 100% of Consolidated Net Income (to the extent negative) for each full fiscal year included in the Determination Period. Notwithstanding the foregoing, (x) PGI may make cash payments to officers and employees in respect of shares of stock (or options therefor) granted to such officers and employees upon the termination of employment of such officer or employee (so long as the aggregate amount Credit Agreement ---------------- thereof paid in any single fiscal year shall not exceed U.S. $750,000) (and such cash payments shall not be included in determining the amount of Restricted Payments permitted above) and (y) so long as at the time thereof and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case no Event of any Restricted Payment in excess of $10,000,000, the Borrower Default shall have delivered occurred or be continuing, Restricted Subsidiaries of the Obligors may make Dividend Payments in respect of their shares of stock to the Administrative Agent a Pro Forma Compliance Certificate with respect theretoObligors and other Restricted Subsidiaries of the Obligors (and such payments shall not be included in determining the amount of Restricted Payments permitted above).
Appears in 1 contract
Samples: Credit Agreement (Fabrene Group Inc)
Restricted Payments. Declare or make, directly or indirectly, pay any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except Payments; provided that:
(a) each so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower or any of its Subsidiaries may pay dividends in shares of its own common Equity Interests;
(b) any Subsidiary of the Borrower may pay cash dividends to the Borrower or any Guarantor;
(i) any Non-Guarantor Subsidiary that is a Domestic Subsidiary may make Restricted Payments to Persons any other Non-Guarantor Subsidiary that own Equity Interests 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;
a Domestic Subsidiary and (bii) each Loan Party and each any Non-Guarantor Subsidiary that is a Foreign Subsidiary may declare and make dividend payments or Restricted Payments to any other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing DateNon-Guarantor Subsidiary;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners its Subsidiaries may make cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests; orInterests of the Borrower or a Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing, the Borrower and its Subsidiaries may pay quarterly cash dividends make Restricted Payments pursuant to the ESOP and in accordance with respect to the Borrower’s Class C Preferred Stock stock option plans or other benefit plans or similar arrangements for management (including directors and additional contributions from officers) or employees of the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerand its Subsidiaries; and
(f) the Borrower may declare and make other Restricted Payments in aggregate amount in any Fiscal Year not to exceed $10,000,000 so long as (i) no Default exists immediately prior or Event of Default has occurred and after giving effect thereto is continuing or would result therefrom and (ii) upon after giving pro forma effect to such Restricted PaymentPayment and any Indebtedness incurred in connection therewith, (A) the Loan Parties would Consolidated Total Leverage Ratio is less than or equal to 2.00 to 1.00, such compliance to be in compliance with determined on the basis of the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have information most recently delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Lender pursuant to Section 6.1(a) or (b) as though such Restricted Payment had been made as of the last day of the applicable four fiscal quarter period covered thereby.
Appears in 1 contract
Restricted Payments. Declare or make, directly Directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatother than:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiaryan amount, ratably according to their respective holdings together with the aggregate amount of the type of Equity Interest in respect of which such all other Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between Payments made by the Borrower and certain owners of Equity Interests, as in effect on its Restricted Subsidiaries after the Closing Date;
Date (dincluding Restricted Payments permitted by clauses (i), (ii) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred payment of dividends on Refunding Capital Stock pursuant to clause (C) thereof only), (vi)(C) and additional contributions from the Borrower to the ESOP in an aggregate amount (viii) of Section 6.03(b), but excluding all other Restricted Payments permitted by Section 6.03(b)) not to exceed $30,000,000 for any fiscal year of the Borrower, Restricted Payment Applicable Amount; provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior or Event of Default shall have occurred and after giving effect thereto and be continuing or would occur as a consequence thereof; (ii) upon immediately after giving effect to such transaction, the Borrower is in compliance on a pro forma basis with the financial covenant set forth in Section 6.07, determined on the last day of the fiscal quarter last ended prior thereto for which Section 5.04 Financials have been delivered to the Administrative Agent; and (iii) unless the proceeds of such Restricted PaymentPayment are being utilized to service Indebtedness or Preferred Stock of any direct or indirect parent company of the Borrower incurred after the Closing Date the proceeds of which were contributed to the common equity of the Borrower and the aggregate amount of such Restricted Payment does not exceed the cash proceeds so contributed, immediately after giving effect to such transaction on a pro forma basis, the Borrower could incur $1.00 of additional Indebtedness pursuant to the Total Net Leverage Ratio test described in Section 6.01(a).
(b) Section 6.03(a) will not prohibit:
(i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(ii) (A) the Loan Parties would be in compliance with redemption, prepayment, repurchase, retirement or other acquisition of any (1) Equity Interests (“Treasury Capital Stock”) of the financial covenants set forth in Section 8.11 on a Pro Forma Basis and Borrower or any Restricted Subsidiary or Subordinated Indebtedness of the Borrower or any Guarantor or (B2) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (andEquity Interests of any direct or indirect parent company, in the case of each of clause (1) and (2), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of, Equity Interests of the Borrower, or any direct or indirect parent company to the extent contributed to the capital of the Borrower or any Restricted Payment Subsidiary (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”), (B) the declaration and payment of dividends on the Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of, Equity Interests of the Borrower, or any direct or indirect parent company to the extent contributed to the capital of the Borrower or any Restricted Subsidiary (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”), (B) the declaration and payment of dividends on the Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of the Refunding Capital Stock, and (C) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clauses (vi)(A) or (B) of this Section 6.03(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent company of the Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(iii) the redemption, prepayment, repurchase or other acquisition or retirement of the Existing Notes due 2015, the New Senior Notes or Subordinated Indebtedness of the Borrower or a Restricted Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Borrower or a Restricted Guarantor, as the case may be, which is incurred in compliance with Section 6.01 so long as:
(I) the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Indebtedness being so redeemed, repurchased, acquired or retired for value, plus the amount of any premium required to be paid under the terms of the instrument governing the Indebtedness being so redeemed, repurchased, acquired or retired and any fees and expenses incurred in connection with the issuance of such new Indebtedness;
(II) solely in the case of Subordinated Indebtedness, such new Indebtedness is subordinated to the Obligations at least to the same extent as such Subordinated Indebtedness so purchased, exchanged, redeemed, prepaid, repurchased, acquired or retired for value;
(III) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Indebtedness being so redeemed, prepaid, repurchased, acquired or retired;
(IV) such new Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being so redeemed, prepaid, repurchased, acquired or retired; and
(V) redemptions, prepayments, repurchases or other acquisitions or retirements of the Existing Notes due 2015 pursuant to this clause (iii) shall be permitted only if (a)(x) the Guaranteed Net Leverage Ratio at the time of such prepayment, determined on a pro forma basis is not in excess of $10,000,000(I) the Guaranteed Net Leverage Ratio of 7.2:1.0 or (y) such indebtedness is Refinancing Indebtedness incurred in accordance with Section 6.01(b)(xii) in respect of the Existing Notes due 2015 being redeemed, prepared, repurchased or otherwise acquired or retired, (b) no Default shall have occurred and be continuing or would occur as a consequence thereof, and (c) immediately after giving effect to such transaction, the Borrower shall is in compliance on a pro forma basis with the financial covenant set forth in Section 6.07, determined on the last day of the fiscal quarter last ended for which Section 5.04 Financials have been delivered to the Administrative Agent Agent;
(iv) a Pro Forma Compliance Certificate Restricted Payment to pay for the repurchase, retirement, redemption or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Borrower or any direct or indirect parent company held by any future, present or former employee, director or consultant (or any of their successors, heirs, estates or assigns) of the Borrower, any of its Subsidiaries or any of their respective direct or indirect parent companies pursuant to any management unit purchase agreement, management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate Restricted Payments made under this clause (iv) do not exceed in any calendar year $25,000,000 (with respect theretounused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year).; provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(A) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock and Equity Cure Proceeds) of the Borrower and, to the extent contributed to the capital of the Borrower, Equity Interests of any of any direct or indirect parent company, in each case to members of management, employees, officers, directors or consultants of the Borrower, any of its subsidiaries or any of their respective direct or indirect parent companies that occurs after the Closing Date (other than Equity Interests the proceeds of which are used to fund the Transactions or to fund a Cure Right), to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of Section 6.03(a); plus
(B) the cash proceeds of key man life insurance policies received by the Borrower or any of its Restricted Subsidiaries after the Closing Date; less
(C) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) of this clause (iv); and provided, further, that cancellation of Indebtedness owing to the Borrower from members of management, officers, directors, employees of the Borrower, any of its subsidiaries or any direct or indirect parent company in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent company will not be deemed to constitute a Restricted Payment for purposes of this Agreement;
(v) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Borrower or any of its Restricted Subsidiaries issued in accordance with Section 6.01; provided, however, that immediately after giving effect to such transaction on a pro forma basis, the Borrower could incur
$1. 0 of additional Indebtedness pursuant to the Total Net Leverage Ratio test described in Section 6.01(a);
(vi) (A) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Borrower or any of its Restricted Subsidiaries after the Closing Date, provided that the amount of dividends paid pursuant to this clause (A) shall not exceed the aggregate amount of cash actually received by the Borrower or a Restricted Subsidiary from the issuance of such Designated Preferred Stock;
Appears in 1 contract
Restricted Payments. Declare or makeThe Borrower will not, directly or indirectly, and will not permit any of its Subsidiaries to make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payment except thatfor:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiaryrepurchases, ratably according to their respective holdings redemptions or retirements of Capital Stock of the type Borrower in advance of Equity Interest a regularly scheduled date for such retirement in respect of which such Restricted Payment is being madeconnection with the Borrower’s long-term incentive compensation plans approved by the Borrower’s shareholders and on file with the SEC;
(bi) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
any transfers expressly permitted herein, (cii) dividends by the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and if after giving effect thereto, the Borrower may purchase, redeem, retire, defease any amount of its Equity Interests such dividends plus the amount of all other dividends made pursuant to certain Restated Stock Transfer Restriction Agreements between this clause (b) (A) in the Borrower preceding twelve (12) months does not exceed an amount equal to ten percent (10%) of the Total Shareholders’ Equity and certain owners (B) since the Closing Date does not exceed an amount equal to twenty-five percent (25%) of Equity Intereststhe Total Shareholders’ Equity, and (iii) dividends by a Subsidiary on a pro rata basis to its equity holders; or
(ec) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and if after giving effect thereto thereto, the amount of such Restricted Payments plus the amount of all other Restricted Payments made pursuant to this clause (c) (A) in the preceding twelve (12) months does not exceed an amount equal to ten percent (10%) of the Total Shareholders’ Equity and (iiB) since the Closing Date, does not exceed an amount equal to twenty-five percent (25%) of the Total Shareholders’ Equity; unless prior to and upon giving effect to such Restricted Paymentevent described in (a), (Ab), (c) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and or any other Restricted Payment (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (andexcluding, in any event, dividends from any Subsidiary to the case of Borrower or to any Restricted Payment in excess of $10,000,000other Subsidiary), the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that prior to and upon giving effect to such event, the Borrower’s Leverage Ratio is less than or equal to 3.25 to 1.0. Any Restricted Payments in exchange for, or out of the net cash proceeds of the substantially concurrent (1) contribution to the equity capital of the Borrower or (2) sale (other than to a Subsidiary of the Borrower) of Capital Stock of the Borrower (other than Disqualified Stock), with respect thereto)a sale being deemed substantially concurrent if such redemption, repurchase, retirement, or acquisition occurs not more than 120 days after such sale, shall not be subject to this Section 7.5.
Appears in 1 contract
Samples: Revolving Credit Agreement (International Speedway Corp)
Restricted Payments. Declare The Borrower will not, and Intermediate Holdings and the Borrower will not permit any of their respective subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatexcept:
(a) each Subsidiary the Borrower and the Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to Persons that own their Equity Interests payable solely in such Subsidiary, ratably according to additional shares of their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeInterests;
(b) each Loan Party and each Subsidiary the Subsidiaries may declare and make dividend payments pay dividends or other distributions payable solely in common ratably with respect to their Equity Interests of such PersonInterests;
(c) after the Borrower may purchase, redeem, retire, defease or make other payments in respect expiration of the 2,598 shares Covenant Relief Period, other Restricted Payments consisting of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower redemptions and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP repurchases in an aggregate amount not to exceed $30,000,000 for any fiscal year 500,000,000;
(d) other Restricted Payments consisting of cash dividends and cash return of capital distributions in an amount not to exceed (i) during the Covenant Relief Period, $45,000,000 in the aggregate and (ii) after the expiration of the BorrowerCovenant Relief Period, provided that within five Business Days of making such payment the Borrower receives a payment $300,000,000 in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrowerany four consecutive fiscal quarter period; and
(fe) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior made after the expiration of the Covenant Relief Period and not otherwise permitted under this Section 6.07, provided that, after giving effect thereto and (ii) upon giving effect to each such Restricted PaymentPayment and any related Borrowing, (A) the Loan Parties would Liquidity Amount shall not be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than $800,000,000; provided further that, during the maximum then permitted under Section 8.11(aCovenant Relief Period, Restricted Payments of the type referred to in clause (b) of the definition thereof may be made pursuant to any Deferred Compensation Plan (and, or any amendment thereto approved in good faith by the case board of any Restricted Payment in excess directors of $10,000,000Intermediate Holdings, the Borrower shall have delivered to or the Administrative Agent a Pro Forma Compliance Certificate with respect theretoapplicable Subsidiary).
Appears in 1 contract
Restricted Payments. Declare or make, directly or indirectly, Make any Restricted PaymentPayments; provided, however, so long as no Default arising from the Company's failure to comply with Section 7.9 has occurred and is continuing (or incur would result from any obligation such payment) and no Event of Default has occurred and is continuing (contingent or otherwisewould result from any such payment), the Company may make Restricted Payments as expressly permitted by subparagraphs (a) to do so, except thatand (b) below:
(a) each Subsidiary The Company may make Restricted Payments during any Calculation Period in an amount which, when added to Persons that own Equity Interests in all other Restricted Payments (including Restricted Payments made pursuant to Section 8.16(b)(i)) made during such SubsidiaryCalculation Period, ratably according to their respective holdings does not exceed the sum of (i) fifty percent (50%) of the type increase, if any, in Adjusted Consolidated Tangible Net Worth during such Calculation Period plus (ii) 100% of Equity Interest all dividends received by the Company during such Calculation Period from preferred and common stock in FSA and from redeemable preferred stock in U S WEST, Inc. plus (iii) 50% of interest payable by the Company with respect to such Calculation Period on the Subordinated Debt.
(1) the contribution or distribution of Restricted FSA Securities, (2) cash equity contributions to the Company, (3) the receipt of proceeds of issuances of stock of the Company, (4) increases or decreases in the amount of Subordinated Debt, or (5) the payment of permitted Restricted Payments.
(b) The Company may, without regard to the maximum limit on Restricted Payments established by Subsection (a) above:
(i) pay dividends required to be paid on its Series A Preferred Stock and pay interest that is due and payable on the Subordinated Debt, provided that all payments made pursuant to this clause (i) shall still be included for purposes of determining the maximum amount of dividends and distributions payable under Subsection (a);
(ii) make additional Restricted Payments not to exceed the Maximum Special Dividend Amount in the aggregate, which additional Restricted Payments made pursuant to this clause (ii) shall not be included in determining the maximum amount of Restricted Payments made under Subsection (a); and
(iii) distribute the proceeds of issuances of stock to an Affiliate (but not any proceeds received in connection with any public or secondary offering of stock). At the time the Company pays or makes any such Restricted Payment, it shall notify the Agent in writing of the amount of such payment, which notice shall (1) specify under which subparagraph and clause above the Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto made and (ii2) upon giving effect contain such information as is necessary to demonstrate that such Restricted Payment, (A) dividend is permissible under the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis applicable subparagraph and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)clause.
Appears in 1 contract
Samples: Revolving Credit Agreement (Source One Mortgage Services Corp)
Restricted Payments. Declare The Parent will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, make any Restricted Payment, or incur Payment at any obligation (contingent or otherwise) to do sotime, except that:
(a) each Subsidiary may make Restricted Payments to Persons that own Equity Interests 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) each Loan Party and each Subsidiary Parent may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment Restricted Payment in cash from the ESOP as a payment of principal(including, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other without limitation, Restricted Payments to Affiliates) so long as (i) no Default exists immediately prior on the date of such Restricted Payment and after giving effect thereto no Default shall have occurred and be continuing, and (ii) upon either (x) immediately after giving effect thereto the aggregate amount of cash and Cash Equivalents held by the Parent and its Restricted Subsidiaries (excluding cash and Cash Equivalents securing reimbursement obligations in respect of Secured LOCs) plus the aggregate amount of unused Revolving Credit Commitments is at least $300,000,000 (provided that the aggregate amount of Restricted Payments made as permitted by this clause (x) after the date hereof shall not exceed $600,000,000) or (y) the aggregate amount of such Restricted Payment together with all other Restricted Payments (excluding Restricted Payments made as permitted by the immediately preceding clause (x)) made after the date hereof shall not exceed 25% of cumulative Excess Cash Flow for the period commencing on January 1, 2010 through and including the last day of the fiscal year most recently ended prior to the date of such Restricted Payment. Nothing herein shall be deemed to prohibit the payment of any dividend or distribution or the making of any payment in cash on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any equity interest in any Subsidiary of the Company so long as either (Ai) the Loan Parties would be in compliance with portion of such dividends, distributions or other payments that are paid to the financial covenants set forth in Section 8.11 on a Pro Forma Basis Company and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 its Restricted Subsidiaries are not less than the maximum then portion thereof that such Persons would be entitled to received if such dividends, distributions and other payments were declared and paid ratably to the shareholders, partners and other equityholders of such Subsidiary or (ii) such payment is being made in respect of the purchase by such Restricted Subsidiary from one or more of its equityholders of minority interests held by such equityholders in such Restricted Subsidiary, so long as such purchase is an Investment permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto8.05(a).. Credit Agreement
Appears in 1 contract
Samples: Guaranty and Suretyship Agreement
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each the Borrower and any Subsidiary may make Restricted Payments to Persons that own in the form of issuance of Equity Interests in such Subsidiary, ratably according to their respective holdings (other than Disqualified Stock) of the type of Equity Interest in respect of which such Restricted Payment is being madeBorrower or any Subsidiary;
(b) each Loan Party and each Subsidiary the Borrower may declare and make dividend payments or other distributions payable solely in common Restricted Payments with respect to its Equity Interests payable in cash; provided that (i) such Restricted Payments are made in accordance with the Borrower’s dividend policy as in effect as of the Effective Date and any dividend policy in effect after the Effective Date consistent with past practice, (ii) after giving immediate effect to such PersonRestricted Payments on a Pro Forma Basis, the Borrower shall be in compliance with the covenants set forth in Sections 6.14(a), (b) and (c) and (iii) such Restricted Payments are not expressly prohibited pursuant to the terms of the Junior Subordinated Debentures and the related Debenture Indentures;
(c) the Borrower Subsidiaries may purchase, redeem, retire, defease or make other payments in Restricted Payments ratably with respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of their Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests make Restricted Payments pursuant to certain Restated Stock Transfer Restriction Agreements between and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and certain owners of Equity Interestsits Subsidiaries; orand
(e) the Borrower may pay quarterly cash dividends repurchase (i) prior to the ESOP occurrence of a Qualifying IPO, its Equity Interest consisting of preferred stock and (ii) after the occurrence of a Qualifying IPO, any of its Equity Interests, in each case in the open market or in privately negotiated transactions so long as the Board of Directors of the Borrower shall have authorized such repurchase and the management of the Borrower shall have determined that such repurchase is in the best interest of the Borrower, in an aggregate amount from and after the Effective Date not to exceed the greater of (x) $300,000,000 and (y) the sum of $150,000,000 and 50% of the net proceeds received by the Borrower from any sale of its own Equity Interests from and after the Effective Date; provided, that at the time such repurchases are made each Regulated Insurance Company that is material to the Borrower and its Subsidiaries, taken as a whole (other than any Regulated Insurance Company that was acquired less than one year prior to the date of such payment) has a current financial strength rating by A.M. Best Company of not less that “A-” at the time of such repurchases to the extent such Regulated Insurance Company has an A.M. Best Company financial strength rating; provided, further that, in no event shall the aggregate repurchase price to be paid by the Borrower for Restricted Payments pursuant to clause (i) of this Section 6.07(e) during any Fiscal Year ending after the Effective Date exceed $75,000,000 or clause (ii) of this Section 6.07(e) during any Fiscal Year ending after the Effective Date exceed $300,000,000;
(f) the Borrower and any Subsidiary may make any payment (even if such payment is in the form of a Restricted Payment) to the Borrower or another Subsidiary that is required to be made with respect to or in connection with the Borrower’s Class C Preferred Stock and additional contributions from terms of any tax sharing, tax allocation or other similar tax arrangement or agreement entered into among the Borrower and its Wholly Owned Subsidiaries;
(g) the Borrower may enter into, exercise its rights and perform its obligations under Permitted Call Spread Swap Agreements;
(h) the Borrower may (x) make cash payments and/or deliveries of its common stock upon conversion of Permitted Convertible Notes pursuant to the ESOP terms thereof and (y) repay, repurchase or otherwise redeem, defease or make payments with respect to, the Convertible 2021 Notes and Convertible 2044 Notes;
(i) the Borrower may make interest payments in respect of Indebtedness under Permitted Convertible Notes;
(j) the Borrower and any Subsidiary may make payments to Parent or any direct or indirect parent thereof to allow such Person to pay (1)(A) administrative expenses and corporate overhead, franchise fees, public company costs (including SEC and auditing fees) and customary director fees; (B) premiums and deductibles in respect of directors and officers insurance policies and umbrella excess insurance policies obtained from third-party insurers and indemnities for the benefit of its directors, officers and employees or (C) reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering or any unsuccessful acquisition or strategic transaction by such Person, or (2)(A) any pass- through Taxes (including any distribution on account thereof) in an amount not to exceed the sum of the amount of the relevant U.S. federal, state, local and foreign income taxes that the Borrower and its Subsidiaries (including Specified Fee Business Holdco and its subsidiaries) would have paid (including for this purpose any income under Section 951 of the Code, income under Section 951A of the Code and any income of any entity (including partnerships) on which the Borrower and its subsidiaries are required to pay taxes) for such taxable period had the Borrower and such Subsidiaries been a stand-alone corporate group or (B) franchise and excise taxes, fees and other similar taxes and expenses in each case required to maintain its existence;
(k) the Borrower and any Subsidiary may purchase, repurchase, redeem or otherwise acquire (including by cancellation of Indebtedness), cancel or retire for value or make a payment in respect of Equity Interests (or make a Restricted Payment in an amount equal to the amount required by any direct or indirect parent of the Borrower or any of its Subsidiaries to fund any such purchase, repurchase, redemption or other acquisition, cancellation or retirement for value or payment in respect of its Equity Interests), held by any existing or former employees, management or directors of or consultants to the Borrower or such Subsidiary (or any direct or indirect parent of the Borrower or any Subsidiary), or their assigns, estates or heirs, in each case in connection with the repurchase or payment provisions under employee stock option or stock purchase agreements or other compensatory agreements approved by the board of directors or investment committee (or other applicable committee) of such Person, as applicable; provided that such purchases, repurchases, redemptions, acquisitions, cancellations or retirements pursuant to this clause (k) will not exceed $35,000,000 in the aggregate during any Fiscal Year (with any unused amounts in any given Fiscal Year being available to be applied pursuant to this clause (k) in any succeeding Fiscal Years); provided, that notwithstanding the definition of “Restricted Payments”, payments in cash in connection with the settlement of stock options and restricted stock units outstanding and in accordance with terms thereof as of the date of this Agreement to existing or former employees, management, directors or consultants of the Borrower or any Subsidiary, in each case, will not be deemed to constitute a Restricted Payment for purposes of this Section 6.07 or any other provision of this Agreement;
(l) the Borrower and any Subsidiary may make Restricted Payments to, or in an amount necessary for any Person to (x) pay its obligations under, or in connection with, and transaction costs, fees and expenses of such Person, or required to be paid or reimbursed by such Person, incurred under or in connection with, the Merger Agreement and the consummation of the transactions contemplated thereby and (y) without duplication of amounts payable pursuant to the foregoing clause (x), purchase, repurchase, redeem or otherwise acquire, cancel or retire for value or make a payment in respect of, Equity Interests of the Borrower on, or within 30 days after, the Effective Date, in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and80,000,000;
(fm) the Borrower may make other Restricted Payments so long as in an aggregate amount in each Fiscal Year not to exceed the greater of (ix) no Default exists immediately prior and after giving effect thereto $140,000,000 and (iiy) upon giving effect to such Restricted Payment, (A) 50% of the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Borrower’s Consolidated Net Leverage Ratio Income as so calculated of the last day of the most recent Fiscal Year for which Financials have been delivered (with any unused amounts in any given Fiscal Year being available to be applied pursuant to this clause (m) in the first two Fiscal Quarters of the immediately succeeding Fiscal Year); provided, that at the time such payments are made each Regulated Insurance Company that is at least 0.25 material to the Borrower and its Subsidiaries, taken as a whole (other than any Regulated Insurance Company that was acquired less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered one year prior to the Administrative Agent date of such payment) has a Pro Forma Compliance Certificate with respect thereto).current financial strength rating by A.M. Best Company of not less that “A-” at the time of such payments to the extent such Regulated Insurance Company has an A.M. Best Company financial strength rating; provided, further, that amounts otherwise available for application to make Restricted Payments pursuant to this clause (m) may instead be applied, to make
Appears in 1 contract
Samples: Credit Agreement
Restricted Payments. Declare or make, directly or indirectly, No Credit Party shall make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each intercompany loans and advances between Borrower and its Subsidiaries to the extent permitted by Section 6.3, (b) dividends and distributions by Subsidiaries of Borrower paid to Borrower, (c) employee loans permitted under Section 6.2(g), (d) payments of principal of and interest on Intercompany Notes issued in accordance with Section 6.3; provided that with respect to payments by Borrower or any U.S. Credit Party to any Foreign Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which intercompany Indebtedness owed by Borrower or such Restricted Payment is being made;
US Credit Party to any Foreign Subsidiary (b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
(di) no Default exists immediately prior or Event of Default would occur and be continuing after giving effect theretoto any such payment, the and (ii) Borrower may purchaseshall have Borrowing Availability of not less than $2,000,000 after giving effect to any such payment, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends payments of principal of and interest on Subordinated Debt to the ESOP with respect to extent expressly permitted under the Borrower’s Class C Preferred subordination provisions and agreements relating thereto, and (f) repurchase or redemption by Borrower of its Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed exceeding $30,000,000 for 1,000,000 in any fiscal year of Fiscal Year and not exceeding $4,000,000 after the BorrowerClosing Date. In addition, provided that within five Business Days of making such payment the Borrower receives a no US Credit Party shall make any payment in cash from the ESOP as a payment respect of principal, interest or other charges on Indebtedness of the ESOP any intercompany trade payables owing by such US Credit Party to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as any Foreign Subsidiary unless: (i) no Default exists immediately prior or Event of Default would occur and be continuing after giving effect thereto to any such payment, and (ii) upon Borrower shall have Borrowing Availability of not less than $2,000,000 after giving effect to any such Restricted Paymentpayment; provided, (A) however, that the Loan Parties would be in compliance with the financial covenants conditions set forth in Section 8.11 on a Pro Forma Basis clauses (i) and (Bii) above shall not apply if Borrower can demonstrate to Agent’s reasonable satisfaction, that the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case non-payment of any Restricted Payment in excess of $10,000,000, the an intercompany trade payable would cause adverse tax consequences to Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)or such US Credit Party.”
Appears in 1 contract
Restricted Payments. Declare or make(a) Subject to Section 5.04, RJRN will not, and will not permit any of its Subsidiaries to, directly or indirectly, declare, make or pay any Restricted Payment unless:
(i) the Restricted Payment is RJRN's regularly scheduled quarterly cash dividend and the amount per share of that Restricted Payment does not exceed the amount per share of its last regularly scheduled quarterly cash dividend (appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, spin-off or other recapitalization); or
(ii) the sum of the aggregate amount of that Restricted Payment, together with the amounts of all other Restricted Payments paid or incur made by RJRN or any obligation of its Subsidiaries after the date of this Agreement, does not exceed the sum of (contingent or otherwisex) to do so$300 million, except that:plus (y) 60% of the Cash Net Income (or, if Cash Net Income is negative, less 100% of the deficit) during the Measurement Period, plus (z) 100% of the Net Cash Proceeds from the issuance of Equity Interests of RJRN during the Measurement Period; or
(aiii) each Subsidiary may make the RJRN Debt is Investment Grade and RJRN delivers to Holdings, at least 30 days before the declaration or other RJRN Board approval of that Restricted Payments Payment, a Qualified Opinion, dated no earlier than 45 days before its delivery to Persons Holdings, that own Equity Interests in such Subsidiary, ratably according the RJRN Debt is reasonably likely to their respective holdings of remain Investment Grade after giving effect to that Restricted Payment; or
(iv) the type of Equity Interest in respect of which such Restricted Payment is being made;the payment of a dividend within 60 days of its declaration if the dividend was permitted at the time of declaration.
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely The amount of any non-cash Restricted Payment shall equal its fair market value as determined in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect good faith by a resolution of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower RJRN Board and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is an Officer's Certificate delivered to Holdings at least 0.25 less than 30 days before the maximum then permitted under Section 8.11(a) (anddate of its declaration, in the case of a dividend, or payment, in the case of any other Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Payment.
Appears in 1 contract
Samples: Distribution Agreement (Rj Reynolds Tobacco Holdings Inc)
Restricted Payments. Declare (A) Prior to the Investment Grade Date, it will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each any Restricted Subsidiary may declare and make Restricted Payments pro rata to the owners of its Equity Interests, (b) the Borrower may make Restricted Payments to Persons that own the owners of its Equity Interests in such Subsidiary, ratably according to their respective holdings the extent of the type amount of Equity Interest “Available Cash” (as defined in respect the Partnership Agreement) in accordance with the terms of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
the Partnership Agreement, (c) the Borrower may make and declare Restricted Payments in exchange for, or out of the net cash proceeds from the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Borrower (other than Disqualified Equity), (d) the Borrower and each Restricted Subsidiary may purchase, redeem, retire, defease redeem or make other payments in otherwise acquire (on a pro rata basis with respect of the 2,598 shares to all of its Equity Interests or any warrant, right or option to acquire such Interests) Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between issued by it with the Borrower and certain owners proceeds received from the substantially concurrent issuance by it of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its new Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests(other than Disqualified Equity); or
(e) the Borrower Parties may pay quarterly cash dividends to the ESOP make Restricted Payments of Securitization Fees and purchases of Securitization Assets, in each case in connection with respect to the Borrower’s Class C Preferred Stock any Securitization Facility permitted hereunder and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower Parties may make other Restricted Payments so long as not otherwise permitted by the foregoing clauses in this Section 6.08 in an amount in the aggregate during any 12-month period not to exceed $215,000,000 (i) no Default exists provided that, both immediately prior before and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (Ax) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 Borrower’s Consolidated Leverage Ratio on a Pro Forma Basis is not in excess of 4.50 to 1.00 and (y) the aggregate Revolving Credit Exposure for all Lenders does not exceed $650,000,000 (or, if the aggregate Committed Amounts are reduced pursuant to Section 2.05(b)(ii), does not exceed $550,000,000); provided that, with respect to each of clauses (a), (b), (c), (d) and (e) above, that no Default has occurred and is continuing or would result therefrom; and (B) On or after the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (andInvestment Grade Date, in the case it will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment in excess Payment, if an Event of $10,000,000Default has occurred and is continuing, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)or would result therefrom.
Appears in 1 contract
Samples: Credit Agreement (Genesis Energy Lp)
Restricted Payments. Declare (a) The Borrowers will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any dividend on any class of its Equity Interests, any Earnout Obligations (other than those Earnout Obligations set forth on Schedule 7.5 and subject to the limitations in the amounts set forth therein) or any payment or prepayment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any Equity Interest, or Indebtedness subordinated in any manner to the Obligations, or any options, warrants, or other rights to purchase such Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment”), except for (i) dividends payable by Crawford solely in shares of any class of its Equity Interests (other than Disqualified Stock), (ii) Restricted Payments made by any Subsidiary to either Borrower or to another Subsidiary (other than a Dormant Company), (iii) (x) if, at the time of making of a proposed Restricted Payment, or incur any obligation the Leverage Ratio (contingent or otherwiseafter giving pro forma effect to such Restricted Payment) is less than 2.75 to do so1.00 but exceeds 2.25 to 1.00, except that:
(a) each Subsidiary Crawford may make such Restricted Payments so long as any such Restricted Payment together with all other Restricted Payments made pursuant to Persons that own Equity Interests this clause (iii) during the fiscal quarter 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) each Loan Party made and each Subsidiary may declare the three fiscal quarters immediately preceding such fiscal quarter does not exceed $4,500,000 in aggregate and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower and certain owners of Equity Interests, so long as in effect on the Closing Date;
(d) no Default exists immediately prior or Event of Default has occurred and is continuing or would be caused by such Restricted Payment and (y) if, at the time of making of a proposed Restricted Payment, the Leverage Ratio (after giving pro forma effect theretoto any such Restricted Payment) is less than or equal to 2.25 to 1.00, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(f) the Borrower Crawford may make other such Restricted Payments so long as any such Restricted Payment together with all other Restricted Payments made pursuant to this clause (iiii) during the fiscal quarter in which such Restricted Payment is being made and the three fiscal quarters immediately preceding such fiscal quarter does not exceed $12,500,000 in aggregate and so long as no Default exists immediately prior or Event of Default has occurred and after giving effect thereto and (ii) upon giving effect to is continuing or would be caused by such Restricted Payment; for the avoidance of doubt, the total amount of Restricted Payments that may be made pursuant to this clause (iii) may not exceed $12,500,000 in aggregate amount in any period of four consecutive fiscal quarters of Crawford; and (iv) the payment of Earnout Obligations so long as any such payment together with all other payments of Earnout Obligations made pursuant to this clause (iv) during the fiscal quarter in which such payment is being made and the three fiscal quarters immediately preceding such fiscal quarter does not exceed the Earnout Obligation Amount in aggregate; for the avoidance of doubt, the total amount of payments of Earnout Obligations that may be made pursuant to this clause (iv) may not exceed $12,000,000 in aggregate amount in any period of four consecutive fiscal quarters of Crawford; provided, further, that the total amount of Restricted Payments that may be made pursuant to this Section may not exceed $24,500,000 in aggregate amount in any period of four consecutive fiscal quarters of Crawford.
(b) [Intentionally Deleted.]
(c) The Borrowers will not, and will not permit any Subsidiary to, settle or compromise, or enter into any agreement to settle or compromise, any pending or threatened suit, investigation, cause of action or other proceeding with any Person or Governmental Authority, as to any single or related series of claims, involving payment by a Consolidated Party (or a group of them) of $10,000,000 or more, without the obtaining the prior written consent of the Administrative Agent.”
(gg) Section 7.6 of the Credit Agreement is hereby amended by deleting clause (g) of such Section in its entirety and substituting in lieu thereof the following new clauses (g), (Ah) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto).i):
Appears in 1 contract
Samples: Credit Agreement (Crawford & Co)
Restricted Payments. Declare Subject to the penultimate paragraph of Section 6.01, the Parent will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, make any Restricted PaymentPayment at any time; provided that the Parent may declare and make Restricted Payments in cash (including, or incur any obligation (contingent or otherwise) without limitation, Restricted Payments to do soAffiliates), except thatsubject to the satisfaction of each of the following conditions on the date of such Restricted Payment and after giving effect thereto:
(a) each Subsidiary the Parent and any of its Restricted Subsidiaries may repurchase from management, employees and directors equity interests distributed to such management, employees and directors pursuant to stock option plans or other benefit plans in an aggregate amount up to but not exceeding $10,000,000 during any single fiscal year, provided that such figure shall be increased by the aggregate net cash proceeds received by the Parent after the date hereof from additional equity contributions or the issuance of equity interests and not applied to make Restricted Payments under this paragraph (a) during any preceding fiscal year or to Persons that own Equity Interests in such SubsidiaryInvestments under paragraph (a)(iii), ratably according to their respective holdings (iv) or (ix) of the type of Equity Interest in respect of which such Restricted Payment is being madeSection 8.05;
(b) each Loan Party so long as at the time such Restricted Payment is made and each Subsidiary after giving effect thereto no Default shall have occurred and be continuing, the Parent and any of its Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely Restricted Payments during any fiscal year in common Equity Interests an aggregate amount up to but not exceeding 25% of such Person;Excess Cash Flow for the immediately preceding fiscal year; and
(c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests pursuant to certain Stock Purchase Agreements (Restated) between the Borrower Parent and certain owners of Equity Interests, as in effect on the Closing Date;
(d) no Default exists immediately prior and after giving effect thereto, the Borrower may purchase, redeem, retire, defease any of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower Restricted Subsidiaries may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP make other Restricted Payments in an aggregate amount not to exceed $30,000,000 for 5,000,000 at any fiscal year time outstanding. Nothing herein shall be deemed to prohibit the payment of any dividend or distribution or the Borrower, provided that within five Business Days making of making such payment the Borrower receives a any payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness account of the ESOP to purchase, redemption, retirement, acquisition, cancellation or termination of any equity interest in any Subsidiary of the Borrower; and
(f) the Borrower may make other Restricted Payments Company so long as either (i) no Default exists immediately prior the portion of such dividends, distributions or other payments that are paid to the Company and after giving effect thereto its Restricted Subsidiaries are not less than the portion thereof that such Persons would be entitled to received if such dividends, distributions and other payments were declared and paid ratably to the shareholders, partners and other equityholders of such Subsidiary or (ii) upon giving effect to such payment is being made in respect of the purchase by such Restricted PaymentSubsidiary from one or more of its equityholders of minority interests held by such equityholders in such Restricted Subsidiary, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio so long as so calculated such purchase is at least 0.25 less than the maximum then an Investment permitted under Section 8.11(a) (and, in the case of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto8.05(a).
Appears in 1 contract
Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary the Borrower may make Restricted Payments declare and pay dividends with respect to Persons that own its Equity Interests payable solely in such Subsidiaryadditional shares of its common stock, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in common pay dividends ratably with respect to their Equity Interests of such Person;
Interests, (c) the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Restricted Payments pursuant to certain Stock Purchase Agreements (Restated) between and in accordance with stock option plans or other benefit plans for directors, management or employees of the Borrower and certain owners of Equity Interests, as in effect on the Closing Date;
its Subsidiaries and (d) so long as no Default exists has occurred and is continuing or would result therefrom, then (i) at any time when the Consolidated Total Leverage Ratio is less than 3.50 to 1.00 (both immediately prior before and immediately after giving effect thereto, the Borrower may purchase, redeem, retire, defease any making of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; or
(e) the Borrower may pay quarterly cash dividends to the ESOP with respect to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year of the Borrower, provided that within five Business Days of making such payment the Borrower receives a payment in cash from the ESOP as a payment of principal, interest or other charges on Indebtedness of the ESOP to the Borrower; and
(fRestricted Payment) the Borrower may make Restricted Payments without limitation, (ii) at any time when the Consolidated Total Leverage Ratio is less than 4.25 to 1.00 but greater than or equal to 3.50 to 1.00 (both immediately before and immediately after the making of such Restricted Payment) the Borrower may make Restricted Payments which, when aggregated with all other Restricted Payments so long as made pursuant to this Section 6.04(d) during the then current calendar year do not exceed $50,000,000, (iiii) no Default exists at any time when the Consolidated Total Leverage Ratio is less than 5.00 to 1.00 but greater than or equal to 4.25 to 1.00 (both immediately prior before and immediately after giving effect thereto and (ii) upon giving effect to the making of such Restricted Payment, (A) the Loan Parties would be in compliance Borrower may make Restricted Payments which, when aggregated with all other Restricted Payments made pursuant to this Section 6.04(d) during the financial covenants set forth in Section 8.11 on a Pro Forma Basis then current calendar year do not exceed $40,000,000 and (Biv) at any time when the Consolidated Total Leverage Ratio is greater than or equal to 5.00 to 1.00 (both immediately before and immediately after the making of such Restricted Payment) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than Borrower may make Restricted Payments which, when aggregated with all other Restricted Payments made pursuant to this Section 6.04(d) during the maximum then permitted under Section 8.11(a) (and, current calendar year do not exceed $30,000,000; provided that in the case of any Restricted Payment in excess of $10,000,000Section (d)(i), (d)(ii), (d)(iii) or (d)(iv), the Borrower shall have delivered to the Administrative Agent and each Lender a Pro Forma Compliance Certificate certificate satisfactory in form and substance to the Administrative Agent and executed by its chief financial officer or treasurer evidencing compliance with the requirements of such Section and in no event shall the Borrower make a Restricted Payment in violation of the terms of any Material Indebtedness. Notwithstanding clause (b) of this Section 6.04, other than in connection with the Permitted Transactions, a Foreign Credit Party may not pay any dividend to an External Subsidiary unless (x) such dividend is substantially contemporaneously therewith directly or indirectly remitted as a dividend or distribution to a Domestic Credit Party, (y) such dividend is in the form of an intercompany note payable of such Foreign Credit Party which is subordinated on terms satisfactory to the Administrative Agent to the obligations of such Foreign Credit Party under the Credit Documents (a “Dividend Note”) or (z) at the time such dividend is paid no Default has occurred and is continuing and, after giving effect to such dividend, the “Outflow Amount” (as defined below) does not exceed $50,000,000. For purposes hereof, “Outflow Amount” means an amount equal to (1) the aggregate amount of (A) all dividends paid by Foreign Credit Parties to External Subsidiaries after the Restatement Date other than as permitted by subsection (x) or (y) of the preceding sentence plus (B) all amounts (including principal, interest and other amounts) paid by Foreign Credit Parties to non-Credit Parties after the Restatement Date in respect thereto)of Dividend Notes (other than such amounts substantially contemporaneously therewith directly or indirectly remitted as a dividend or distribution to a Domestic Credit Party) minus (2) the amount of all cash capital contributions received by such paying Foreign Credit Parties from External Subsidiaries after the Restatement Date. Payments (including principal, interest and other amounts) on account of Dividend Notes shall only be made if a dividend in the amount of such payment could then be made pursuant to subsection (z) of the second sentence of this Section 6.04; provided that the foregoing restriction shall not apply to such payments to the extent they are either made to a Credit Party or are substantially contemporaneously therewith directly or indirectly remitted as a dividend or a distribution to a Domestic Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Manitowoc Co Inc)
Restricted Payments. Declare or make, directly or indirectly, The Borrowers will not make any ------------------- Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except that:
: (ai) each Subsidiary HomeCrest and Panther may make Restricted Payments to Persons that own Equity Interests Omega; (ii) Omega may make the Restricted Payments described in clause (ii) below at any time prior to the first anniversary of the Closing Date, whether or not a Default or Event of Default exists or would be caused thereby (subject to the limit described in such Subsidiaryclause (ii), ratably according and on the condition that such Restricted Payments are promptly used by Holdings for the purpose described in such clause (ii)); and (iii) if and only if no Default or Event of Default exists or would be caused thereby, Omega may make the following Restricted Payments (subject to their respective holdings the limitations described below, and on the condition that such Restricted Payments are promptly used by Holdings for the purpose described below):
(i) a dividend to Holdings in an amount equal to the sum of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(c) merger consideration to be paid on the Borrower may purchase, redeem, retire, defease or make other payments in respect of the 2,598 shares of its Equity Interests or any warrant, right or option to acquire such Equity Interests Closing Date pursuant to certain Stock Purchase Agreements the Merger Plan, the "Funded Debt" (Restatedas defined in the Merger Plan) between the Borrower and certain owners of Equity Interests, as in effect Holdings to be prepaid on the Closing Date, and certain related transaction expenses, to fund payment of such amounts;
(dii) no Default exists immediately prior and after giving effect theretoa dividend to Holdings in an amount equal to the excess (if any) of the "Aggregate Merger Consideration" over the "Estimated Closing Payment" (as those terms are defined in the Merger Plan), to fund the Borrower may purchase, redeem, retire, defease any payment required by Section 1.8(f) of its Equity Interests pursuant to certain Restated Stock Transfer Restriction Agreements between the Borrower and certain owners of Equity Interests; orMerger Plan;
(eiii) the Borrower may pay quarterly cash dividends to Holdings to fund cash payments to members of Holdings' management or employees under Holdings' Stock call rights and repurchase obligations; provided, however that the ESOP with respect aggregate amount of ----------------- dividends under this Section 6.7(iii) and any intercompany loans to Holdings in lieu thereof may not exceed (i) $1,000,000 per year prior to the Borrower’s Class C Preferred Stock and additional contributions from the Borrower to the ESOP in an aggregate amount not to exceed $30,000,000 for any fiscal year issuance of the BorrowerHigh Yield Subordinated Permanent Debt, provided that within five Business Days and (ii) $1,500,000 per year after the issuance of making such payment the Borrower receives a payment in cash from High Yield Subordinated Permanent Debt;
(iv) dividends to Holdings to fund the ESOP as a payment of principal, interest or and other charges on Indebtedness amounts payable under the Xxxxxx Subordinated Bridge Loan Documents; provided, however that the aggregate amount of such dividends ----------------- may not exceed the net proceeds from the issuance of the ESOP High Yield Subordinated Permanent Debt received by the Borrowers and not applied to repay amounts owed under the BorrowerWest Street Subordinated Bridge Loan Documents; and
(fv) dividends to Holdings to fund payments due under the Borrower may make other Restricted Payments so long as (i) no Default exists immediately prior and after giving effect thereto and (ii) upon giving effect to such Restricted Payment, (A) Contingent Promissory Note that is secured by the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis and (B) the Consolidated Net Leverage Ratio as so calculated is at least 0.25 less than the maximum then permitted under Section 8.11(a) (and, in the case Stockholders' Committee Letter of any Restricted Payment in excess of $10,000,000, the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate with respect thereto)Credit.
Appears in 1 contract
