Distributions; Upstream Payments Clause Samples
Distributions; Upstream Payments. Declare or make any Distributions, except Upstream Payments and Permitted Distributions; or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary of Parent to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15.
Distributions; Upstream Payments. Declare or make any Distributions, except:
(a) Upstream Payments and Distributions to the direct or indirect parent of Intermediate Holdco to the extent necessary to (i) permit the direct or indirect parent of Intermediate Holdco to discharge, to the extent attributable to the direct or indirect ownership of Borrowers and their Subsidiaries, the federal consolidated, combined, unitary or similar tax liabilities and any state or local tax liabilities of the direct or indirect parent of Intermediate Holdco and its Subsidiaries, (ii) permit the direct or indirect parent of Intermediate Holdco to pay franchise taxes, audit costs, and other administrative costs and expenses customary for such a company, in each case so long as the amount of any such Distribution is applied for such purpose; and (iii) make tax-related payments required under the Project Vine Purchase Agreement.
(b) Each Subsidiary of an Obligor may make Distributions to any Borrower;
(c) the Obligors and each Subsidiary may declare and make dividend payments or distributions payable solely in the common stock or other common Equity Interests of such Person, so long as it does not result in a Change of Control;
(d) a Distribution to the extent permitted under Section 10.2.16(e);
(e) the Borrowers may make Distributions to Intermediate Holdco, and Intermediate Holdco may make Distributions to Ultimate Holdco, the proceeds of which are used substantially contemporaneously, directly or indirectly, to redeem or repurchase Equity Interests from officers, directors, employees, advisors or consultants (or any spouses, ex-spouses, or estates of any of the foregoing) of any Obligor or any of its Subsidiaries, upon termination of employment in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such Persons; provided, that, in all such cases (i) the aggregate amount of such payments in respect of all such Equity Interests so redeemed or repurchased shall not exceed $2,500,000 in any Fiscal Year (ii) immediately before and after making such Distribution, no Event of Default shall have occurred and be continuing or result therefrom, (iii) immediately before and after giving effect to such Distribution on a pro forma basis, Borrowers shall have no less than $10,000,000 of Availability.
(f) Any payment permitted or required pursuant to Section 5.13 of the Second Lien Loan Agreement.
Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Permitted Distributions and (ii) Upstream Payments; or
(b) Create or suffer to exist any encumbrance or restriction on the ability of a Domestic Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, the Revolver Loan Documents and the Second Lien Debt Documents and under Applicable Law or restrictions in effect on the Closing Date as shown on Schedule 8.1.15.
Distributions; Upstream Payments. Declare or make any Distributions, except Permitted Distributions when no Event of Default exists, or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Distribution to Borrower, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 8.1.14.
Distributions; Upstream Payments. Declare or make any Distributions, except Upstream Payments; or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15; provided, however, that (i) the Borrowers may make Distributions so long as: (A) no Default or Event of Default exists or is caused thereby, and (B) upon giving pro forma effect thereto, for the 30 days preceding on an average daily basis and as of the Distribution, Availability is at least the greater of: (1) 20% of the Borrowing Base, and (2) $5,000,000; and (ii) in addition to any Distributions permitted under clause (i) above, Radiant may redeem its shares of the Series A Preferred Stock to the extent solely using identifiable proceeds of a substantially concurrent issuance and sale of common stock of Radiant.”
2. Effectiveness of this Amendment. The following shall have occurred before this Amendment is effective:
(a) Lender shall have received this Amendment fully executed in a sufficient number of counterparts for distribution to all parties.
(b) Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral of New Borrower, as well as UCC and Lien searches and other evidence satisfactory to Lender that such Liens are the only Liens upon the Collateral of New Borrower, except Permitted Liens.
(c) Lender shall have received a certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of New Borrower certifying that, after giving effect to this Amendment, (i) New Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 of the Loan Agreement are true and correct; and (iv) New Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents.
(d) Lender shall have received a certificate of a duly authorized officer of New Borrower, certifying (i) that attached copies of New Borrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all res...
Distributions; Upstream Payments. Make or declare any Distributions, except:
(a) Upstream Payments;
(b) the purchase, redemption or other acquisition of shares of Equity Interests of the Borrower Agent or any Subsidiary from employees, former employees, directors or former directors of the Borrower Agent or any Subsidiary (or permitted transferees of such employees, former employees, directors or former directors) following the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of the Borrower Agent or any Subsidiary; provided, that, the aggregate amount of such Distributions (excluding amounts representing cancellation of Debt) shall not exceed $1,500,000 in any Fiscal Year, except that any amount not so used in any Fiscal Year may be used in subsequent Fiscal Years; provided, further that no more than $5,000,000 in such Distributions may be made during the term of this Agreement;
(c) Distributions to make payments to the holders of the Warrants pursuant to the terms thereof;
(i) the cashless exercise of options, (ii) the retirement of fractional shares, (iii) repurchases of Equity Interests deemed to occur in connection with the surrender of shares of Equity Interests to satisfy tax withholding obligations and (iv) the cashless exercise of warrants; and
(e) any other Distribution, so long as (i) after giving Pro Forma Effect to such Distribution, the Consolidated Total Leverage Ratio does not exceed 2.50 to 1.00 as of the last day of the most recently ended Measurement Period, (ii) Liquidity is not less than $35,000,000 immediately after giving effect to such Distribution; (iii) at the time of, and after giving effect to such Distribution, no Default or Event of Default shall have occurred or be continuing; (iv) the Payment Conditions shall have been satisfied; and (v) Agent shall have received a Pro Forma Compliance Certificate duly executed by a Responsible Officer, which shall include a certification that the foregoing conditions and the Payment Conditions are satisfied with respect thereto; provided, however, that no such Distribution shall be made until the mandatory prepayment in respect of Excess Cash Flow for the Fiscal Year ended December 31, 20...
Distributions; Upstream Payments. Declare or make any Distributions, except Upstream Payments; or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 9.1.15 and except, as long as no Event of Default exists or would result therefrom:
(a) Distributions by Olympic Steel to the holders of its Equity Interests payable solely in common stock of the type currently held by such holders;
(b) Olympic Steel may issue stock option, restricted stock unit, share or other Equity Interest under its 2007 Omnibus Incentive Plan or any other stock option, restricted stock unit, share or other Equity Interest plan of Olympic Steel; and
(c) (i) Distributions by Olympic Steel to, and repurchases by Olympic Steel of Equity Interests from, the holders of Equity Interests of Olympic Steel not to exceed $2,500,000 in the aggregate during any Fiscal Year; and (ii) Distributions by Olympic Steel to, and repurchases by Olympic Steel of Equity Interests from, the holders of Equity Interests of Olympic Steel in excess of $2,500,000 in the aggregate during any Fiscal Year as long as not less than 5 Business Days prior to the date of such proposed Distribution or repurchase, Agent shall have received written notice thereof together with a certificate, in form and substance satisfactory to Agent, from a knowledgeable Senior Officer of Borrower Agent, certifying (and showing the calculations therefor in reasonable detail and, in the case of demonstrating compliance with subclause (B)(ii) below pro forma financial statements and a pro forma Compliance Certificate, dated as of the date of the proposed Distribution or repurchases, in form and substance satisfactory to Agent) compliance with the following requirements: either (A) after giving effect to any such proposed Distribution or repurchase, Availability is equal to or exceeds 25% of the aggregate amount of Revolver Commitments then in effect, or (B)(i) after giving effect to any such proposed Distribution or repurchase, Availability is equal to or exceeds 15% of the aggregate amount of Revolver Commitments then in effect and (ii) immediately after giving effect to such proposed Distribution or repurchase, the Fixed Charge Coverage Ratio (recomputed for the most recent Fiscal Quarter for which financial statements have been delivered by adding such proposed Distribution or repurchase...
Distributions; Upstream Payments. Declare or make any Distributions, except:
(a) Upstream Payments; provided, that any Upstream Payments by a Subsidiary (other than a Subsidiary that is a Subsidiary of the Canadian Borrower) to the Canadian Borrower shall not exceed in the aggregate during any Fiscal Year the greater of (x) U.S.$10,000,000 (or its equivalent in other currencies) and (y) 1.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis;
(b) payments by any Borrower or Subsidiary in respect of withholding or similar Taxes payable by any future, present or former officer, director, manager or employee (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; provided, that the aggregate amount of all cash payments made pursuant to this clause (b) shall not exceed in any Fiscal Year the greater of (x) $25,000,000 and (y) 3.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis;
(c) UNFI may purchase or redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests of UNFI, provided, that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby; ABL Credit Agreement”) (including the payment in full of any outstanding interest, fees and expenses owing or accruing under or in respect of the Existing UNFI ABL Credit Agreement) and (B) Supervalu Inc. and its Subsidiaries under (1) the Second Amended and Restated Term Loan Credit Agreement, dated as of January 31, 2014, by and among Supervalu Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, as administrative agent, the lenders party thereto and the other parties party thereto, (2) the Amended and Restated Credit Agreement, dated as of March 21, 2013, by and among Supervalu Inc., ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent, the lenders party thereto a...
Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Upstream Payments, (ii) other Distributions in an aggregate amount not to exceed $50,000 in any Fiscal Year, and (iii) other Distributions if such Distribution is permitted by the Bank of America Agreement and no Default or Event of Default has occurred and is continuing or would occur immediately thereafter as a result thereof; or
(b) Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Closing Date as shown on Schedule 8.3.
Distributions; Upstream Payments. Declare or make, directly or indirectly, any Distribution (or enter into any agreement which obligates any Borrower or Subsidiary to make any Distribution unless such agreement is conditioned upon either obtaining the consent of Agent and Required Lenders to such transaction or the Full Payment of the Obligations upon the making of such Distribution), except Permitted Restricted Payments; or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or in effect on the Restatement Date as shown on Schedule 9.1.15.