Common use of Distributions, Etc Clause in Contracts

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) now or hereafter outstanding, or make any distribution of assets to its stockholders, members or general partners as such, or permit any of its Subsidiaries to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its Subsidiaries may: (i) declare and pay dividends and distributions payable in membership interests (units); (ii) purchase or otherwise acquire shares of the membership interests (units) of the Borrower or its Subsidiaries with the proceeds received from the issuance of new membership interests (units); (iii) so long as the Borrower first provides such supporting documentation as the Lender may request with respect to any fiscal year of the Borrower, the Borrower may pay aggregate cash dividends/distributions, during such fiscal year in an amount not to exceed the amount necessary for the members of the Borrower to pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”); (iv) pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, 40% of the Borrower’s immediately preceding fiscal year’s Net Income including Incentive Payments (except to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAP) (“Allowed Distributions”); (v) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”) provided, however, that immediately prior to the proposed payment of any such dividends or distributions, or after giving effect thereto, no Event of Default shall exist; and (vi) complete the transactions reflected on Schedule 4.01(a); or

Distributions, Etc. Declare No Borrower will make, pay or pay declare any dividendsdividend or distribution on any class of its stock or any distribution of profits or purchase, purchase redeem or otherwise acquire for value any shares of any class of its membership stock or any of the partnership interests (units) in any Borrower now or hereafter outstanding, return any capital to its Partners, or make any distribution of its assets to its stockholders, members or general partners Partners as suchsuch ("Distributions") (a) if an Event of Default has occurred and is continuing and the Majority Lenders have notified the Borrowers in writing not to make such Distributions; (b) if the aggregate Debt of the Borrowers exceeds, or permit any of its Subsidiaries to purchase or otherwise acquire for value any stockwould immediately after such Distribution exceed, membership interest or partnership interest 100% of the BorrowerDebt Limit; or (c) on any date (a "Measuring Date") in any fiscal quarter of HEP if at such Measuring Date, provided, howeverafter giving effect to any such proposed Distribution to be made on such Measuring Date, the Borrower and its Subsidiaries may: aggregate amount of Distributions made in the period of twelve consecutive calendar months ended on such Measuring Date would exceed the Distribution Percentage of an amount equal to (iA) declare and pay dividends and distributions payable in membership interests (units); (ii) purchase or otherwise acquire shares the sum of the membership interests (units) of amounts which are set forth opposite the Borrower or its Subsidiaries with the proceeds captions "Cash provided by operations before working capital changes" and "Distributions received from affiliates" on consolidated statements of cash flows of HEP for the issuance period of new membership interests (units); (iii) so long as the Borrower first provides four consecutive fiscal quarters most recently ended on or prior to such supporting documentation as the Lender may request Measuring Date and with respect to any which the Borrowers have delivered to the Lenders the financial statements required to delivered by them pursuant to Section 1 (it being understood that such financial statements are prepared in accordance with generally accepted accounting principles consistent with those utilized in preparing the consolidated statements of cash flows of HEP as filed in HEP's annual report on Form 10-K for the fiscal year ended December 31, 1994 with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934) minus (B) the Borrower, the Borrower may pay aggregate cash dividends/distributions, during amount of payments made by HEP in such fiscal year in an amount not period to exceed the amount necessary for the members of the Borrower to pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”make purchases permitted by Section 19(n); (iv) pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, 40% of the Borrower’s immediately preceding fiscal year’s Net Income including Incentive Payments (except to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAP) (“Allowed Distributions”); (v) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”) provided, however, that immediately prior to the proposed provisions of subparagraphs (b) and (c) of this Section 20 shall not prevent the payment of any Distribution within 60 days of the declaration thereof, if at said date of declaration such dividends or distributions, or after giving effect thereto, no Event of Default shall existpayment would have complied with the provisions hereof; and (vi) complete the transactions reflected on Schedule 4.01(a); orprovided, further, that for purposes of this Section 20 no Distribution from any Borrower directly or indirectly to another Borrower shall be deemed to be a Distribution hereunder. In addition, for purposes of this Section 20:

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) now or hereafter outstanding, or make any distribution of assets to its stockholders, members or general partners as such, or permit any of its Subsidiaries subsidiaries to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its Subsidiaries subsidiaries may: (i) declare and pay dividends and distributions payable in membership interests (units); (ii) purchase or otherwise acquire shares of the membership interests (units) of the Borrower or its Subsidiaries subsidiaries with the proceeds received from the issuance of new membership interests (units); (iii) so long as the Borrower first provides such supporting documentation as the Lender may request with respect to any fiscal year of the Borrower, the Borrower may pay aggregate cash dividends/distributions, during such fiscal year in an amount not to exceed the amount necessary for the members of the Borrower to pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”); (iv) pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, 4065% of the Borrower’s immediately preceding fiscal year’s Net Income including Incentive Payments (except to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAP) (“Allowed Distributions”); (v) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”) provided, however, that immediately prior to the proposed payment of any such dividends or distributions, or after giving effect thereto, no Default or Event of Default shall exist; and (vi) complete the transactions reflected on Schedule 4.01(a); or

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) now or hereafter outstanding, or make any distribution of assets to its stockholders, members or general partners as such, or permit any of its Subsidiaries to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, Distribution; provided, however, that the Borrower and its Subsidiaries may: (i) declare and pay dividends and distributions Distributions payable in membership interests or units or other Equity Interests (units); including options or warrants) and (ii) purchase or otherwise acquire shares of the membership interests (units) of the Borrower or its Subsidiaries with the proceeds received from the issuance of new membership interests (units); (iii) so long as pay or make the Borrower first provides such supporting documentation as the Lender may request with respect to any fiscal year of the Borrower, the Borrower may pay aggregate cash dividends/distributions, during such fiscal year in an amount not to exceed the amount necessary provision for the members of the Borrower to pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”); (iv) pay redemptions, dividends or distributions Distributions in an amount not to exceed, in the aggregate, 4035% of the Borrower's immediately preceding fiscal year's Net Income Before Tax; provided that any provision for income taxes payable, whether accrued or paid, through intercompany payables shall be deducted therefrom (“Tax Distributions”); provided that all loan covenants are met on a pre- and post-distribution basis, including but not limited to compliance with the Working Capital covenant; (iv) pay Distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”); and (v) complete the transactions reflected on Schedule 4.01(a) and (vi) after payment of the Excess Cash Flow Payment required by Section 2.17, if any, and after all loan covenants are met on a post-dividend basis, pay additional distributions in an amount up to 15% of the Borrower’s immediately preceding fiscal year’s Net Income including Incentive Payments (except to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAP) (“Allowed Excess Distributions”); (v) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”) , provided, however, that immediately prior to the proposed payment of any such dividends or distributionsdistributions permitted by this Section 5.02(b), or after giving effect thereto, no Default or Event of Default shall exist; , and (vi) complete provided, however, that aggregate distributions will not exceed 50% of the transactions reflected on Schedule 4.01(a)Borrower’s immediately preceding fiscal year’s Net Income;; or

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) now or hereafter outstanding, or make any distribution of assets to its stockholders, members or general partners as such, or permit any of its Subsidiaries subsidiaries to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its Subsidiaries may: (i) declare and pay dividends and or distributions payable in membership interests (units); (ii) purchase or otherwise acquire shares of the membership interests (units) of the Borrower or its Subsidiaries with the proceeds received from the issuance of new membership interests (units); (iii) so long make cash Distributions as frequently as quarterly; provided that immediately prior to such Distribution, and after giving effect thereto, no Default or Event of Default exists, and Borrower is in compliance with all covenants set forth herein on a pre- and post-distribution basis, including compliance with the Borrower first provides such supporting documentation as Working Capital covenant set forth in Section 5.01(d) and the Lender may request with respect to any fiscal year of the Borrower, the Borrower may pay aggregate cash dividends/distributions, during such fiscal year Debt Service Coverage Ratio covenant set forth in an amount not to exceed the amount necessary for the members of the Borrower to pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”); (iv) pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, 40% of the Borrower’s immediately preceding fiscal year’s Net Income including Incentive Payments (except to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAPSection 5.01(f) (“Allowed Distributions”). For purposes of Allowed Distributions, covenant compliance shall be certified to Lender on a signed Compliance Certificate accompanied by interim internally-prepared monthly financial statements or audited annual financial statements, following Borrower’s fiscal year end, in each case delivered to Lender prior to making such Allowed Distribution; and (viv) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”) ); provided, however, that immediately prior to GP:4879178v4 i the proposed payment of any such dividends or distributionsDistributions permitted by this Section 5.02(b), or after giving effect thereto, no Default or Event of Default shall exist; . Notwithstanding anything in this Section 5.02(b), without a written waiver from the Lender, aggregate Distributions made and declared in any fiscal year shall not exceed one hundred percent (vi100%) complete of Borrower’s Net Income (book income) for the transactions reflected on Schedule 4.01(a)fiscal year in which such Distributions are declared; or

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) now or hereafter outstanding, or make any distribution of assets to its stockholders, members or general partners as such, or permit any of its Subsidiaries subsidiaries to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its Subsidiaries may: (i) declare and pay dividends and or distributions payable in membership interests (units); (ii) purchase or otherwise acquire shares of the membership interests (units) of the Borrower or its Subsidiaries with the proceeds received from the issuance of new membership interests (units); (iii) so long as the Borrower first provides such supporting documentation as the Lender may request with respect to any (A) in each of Borrower’s 2014 and 2015 fiscal year years (but not later than July 1 of the Borrower, 2014 and 2015 calendar year) redeem certain outstanding shares of the membership interests (units) of Borrower may pay aggregate cash dividends/distributions, during such fiscal year in with the proceeds of the 2014 Term Loan or the Term Revolving Loan for an amount not to exceed $30,000,000 in the amount necessary for the members of the Borrower to aggregate, and (B) declare and pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”); (iv) pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, 40% of the Borrower’s immediately preceding fiscal year’s Net Income (including Incentive Payments (except to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAPPayments) (subsections (A) and (B) in this above are hereinafter, the “Allowed Distributions”); (viv) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”); (v) complete the transactions reflected on Schedule 4.01(a); and (vi) after payment of the Excess Cash Flow Payment required by Section 2.17, if any, pay additional distributions in an amount reasonably acceptable to Lender (“Excess Distributions”), provided, however, that immediately prior to the proposed payment of any such dividends or distributionsdistributions permitted by this Section 5.02(b), or after giving effect thereto, no Default or Event of Default shall exist; exist and provided that aggregate Distributions will not exceed 65% of Borrower’s immediately preceding fiscal year’s Net Income (vi) complete the transactions reflected on Schedule 4.01(aincluding Incentive Payments); or;

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) or units now or hereafter outstanding, or make any distribution of assets to its stockholdersinterest holders, members or general partners as such, or permit any of its Subsidiaries Subsidiary to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its the Subsidiaries may: (i) declare and pay dividends and distributions payable in membership interests or units or equity interests (unitsincluding options or warrants); , (ii) purchase or otherwise acquire shares of the membership interests (units) or units or equity interests of the Borrower or its the Subsidiaries with the proceeds received from the issuance of new membership interests or units or equity interests (unitsincluding options or warrants); , (iii) so long as the Borrower first provides such supporting documentation as the Lender may request with respect to any fiscal year of the Borrower, the Borrower may declare and pay aggregate cash dividends/distributions, dividends and distributions during such fiscal year in an amount not to exceed the amount necessary for the members member of the Borrower to pay their when due (including any payment of estimated taxes) Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”); , (iv) purchase, redeem or otherwise acquire membership interests or units of Borrower or equity interests (including options or warrants) of the Subsidiaries or declare and pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, forty percent (40% %) of the Borrower’s immediately preceding fiscal year’s cumulative Net Income including Incentive Payments of Borrower and its Subsidiaries after the Completion Date minus the cumulative amount of all such payments made pursuant to this Section 5.02(b), (except iv) prior to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAP) date of the payment then being made (“Allowed Distributions”); , (v) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”) provided, however, that immediately prior to the proposed payment of any such dividends or distributions, or after giving effect thereto, no Event of Default shall exist); and (vi) complete the transactions reflected on Schedule 4.01(a), (vii) after payment of the Excess Cash Flow Payment required by Section 2.04(b), if any, pay additional distributions in an amount reasonably acceptable to Lender (“Excess Distributions”), and (viii) purchase the membership interests of Borrower or options or warrants with respect thereto from officers, directors or employees of Borrower upon the death, disability or termination of employment of such officer, director or employee; or

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) or units now or hereafter outstanding, or make any distribution of assets to its stockholdersinterest holders, members or general partners as such, or permit any of its Subsidiaries Subsidiary to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its the Subsidiaries may: (i) declare and pay dividends and distributions payable in membership interests or units or equity interests (unitsincluding options or warrants); , (ii) purchase or otherwise acquire shares of the membership interests (units) or units or equity interests of the Borrower or its the Subsidiaries with the proceeds received from the issuance of new membership interests or units or equity interests (unitsincluding options or warrants); , (iii) so long as the Borrower first provides such supporting documentation as the Lender may request with respect to any fiscal year of the Borrower, the Borrower may declare and pay aggregate cash dividends/distributions, dividends and distributions during such fiscal year in an amount not to exceed the amount necessary for the members member of the Borrower to pay their when due (including any payment of estimated taxes) Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”); , (iv) purchase, redeem or otherwise acquire membership interests or units of Borrower or equity interests (including options or warrants) of the Subsidiaries or declare and pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, forty percent (40% %) of the Borrower’s immediately preceding fiscal year’s cumulative Net Income including Incentive Payments of Borrower and its Subsidiaries after the Completion Date minus the cumulative amount of all such payments made pursuant to this Section 5.02(b), (except iv) prior to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAP) date of the payment then being made (“Allowed Distributions”); , (v) pay dividends or distributions which are immediately reinvested in the Borrower (“Reinvestment Distributions”) provided, however, that immediately prior to the proposed payment of any such dividends or distributions, or after giving effect thereto, no Event of Default shall exist); and (vi) complete the transactions reflected on Schedule 4.01(a), (vii) after payment of the Excess Cash Flow Payment required by Section 2.05(b), if any, pay additional distributions in an amount reasonably acceptable to Lender (“Excess Distributions”), and (viii) purchase the membership interests of Borrower or options or warrants with respect thereto from officers, directors or employees of Borrower upon the death, disability or termination of employment of such officer, director or employee; or

Distributions, Etc. Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) now or hereafter outstanding, or make any distribution of assets to its stockholders, members or general partners as such, or permit any of its Subsidiaries subsidiaries to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its Subsidiaries may: (i) declare and pay dividends and or distributions payable in membership interests (units); (ii) purchase or otherwise acquire shares of the membership interests (units) of the Borrower or its Subsidiaries with the proceeds received from the issuance of new membership interests (units); (iii) so long make cash Distributions as frequently as quarterly; provided that immediately prior to such Distribution, and after giving effect thereto, no Default or Event of Default exists, and Borrower is in compliance with all covenants set forth herein on a pre- and post-distribution basis, including compliance with the Borrower first provides such supporting documentation as Working Capital covenant set forth in Section 5.01(d) and the Debt Service Coverage Ratio covenant set forth in Section 5.01(f) ("Allowed Distributions"). For purposes of Allowed Distributions, covenant compliance shall be certified to Lender may request with respect to any on a signed Compliance Certificate accompanied by interim internally-prepared monthly financial statements or audited annual financial statements, following Borrower's fiscal year of the Borrowerend, the Borrower may pay aggregate cash dividends/distributions, during in each case delivered to Lender prior to making such fiscal year in an amount not to exceed the amount necessary for the members of the Borrower to pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“Tax Distributions”)Allowed Distribution; (iv) pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, 40% of the Borrower’s immediately preceding fiscal year’s Net Income including Incentive Payments (except to the extent such Incentive Payments would not otherwise be classified as Net Income according to GAAP) (“Allowed Distributions”); (v) pay dividends or distributions which are immediately reinvested in the Borrower (“"Reinvestment Distributions”"); and (v) complete the transactions reflected on Schedule 4.01(a); provided, however, that immediately prior to the proposed payment of any such dividends or distributionsDistributions permitted by this Section 5.02(b), or after giving effect thereto, no Default or Event of Default shall exist; . Notwithstanding anything in this Section 5.02(b), without a written waiver from the Lender, aggregate Distributions made and declared in any fiscal year shall not exceed one hundred percent (vi100%) complete of Borrower's Net Income (book income) for the transactions reflected on Schedule 4.01(a)fiscal year in which such Distributions are made and declared; or