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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests; (c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter; (d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000); (e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and (f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests).
Appears in 3 contracts
Sources: Credit Agreement (Paycom Software, Inc.), Credit Agreement (Paycom Software, Inc.), Credit Agreement (Paycom Software, Inc.)
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 or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings Subsidiaries of the type of Equity Interest Parent Borrower may pay dividends and make distributions in respect of which their Capital Stock to the Parent Borrower or any other Person (in such case, ratably based on such other Person’s equity ownership in such Restricted Payment is being madeSubsidiary) which owns Capital Stock of such Subsidiary;
(b) Holdings and each Subsidiary the Parent Borrower may declare and pay dividends with respect to its common Equity Interests make dividend payments or other distributions payable solely in additional shares the common stock or other common equity interests of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Intereststhe Parent Borrower;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Parent Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it shares of its common stock or other common equity interests or warrants or options to acquire any such shares with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests common stock or other common equity interests;
(d) the Parent Borrower may make other Restricted Payments in an aggregate amount not to exceed (i) per fiscal year, the greater of (x) $25,000,000 and (y) 1.00% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries as of such date plus (ii) the Available Amount; provided, that solely with respect to clause (ii) above, (A) Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis, is less than Disqualified Equity Interests4.50:1.00, (B) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis and (C) the Parent Borrower is in compliance with the financial covenants set forth in Section 7.1, determined as of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered pursuant to Section 6.1 and on a pro forma basis;
(e) the Parent Borrower may make other Restricted Payments so long as (i) the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis, is less than 3.50:1.00, (ii) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis and (iii) the Parent Borrower is in compliance with the financial covenants set forth in Section 7.1, determined as of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered pursuant to Section 6.1 and on a pro forma basis and
(f) repurchases of Capital Stock deemed to occur upon the exercise of options to purchase Capital Stock if such shares of Capital Stock represent a portion of the exercise price of such options. Notwithstanding the foregoing, no Restricted Payments may be made for the period on and after the Amendment No. 1 Effective Date and prior to the 2020 Term Facility Termination Date pursuant to clauses (d) or (e) of this Section 7.6. For purposes of determining compliance with this Section 7.6, (A) Restricted Payments need not be made solely by reference to one category described in this Section 7.6, but are permitted to be made in part under any combination thereof and of any other available exemption and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of more than one of the categories of permitted Restricted Payments described in this Section 7.6, the Parent Borrower, in its sole discretion, may divide or classify any such Restricted Payment (or any portion thereof) in any manner that complies with this Section 7.6 and will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one or more (as relevant) of the above clauses (or any portion thereof) and such item of Restricted Payment (or any portion thereof) shall be treated as having been made pursuant to only such clause or clauses (or any portion thereof).
Appears in 3 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Restricted Payments. Declare Borrower shall not, and shall not permit any Subsidiary to, (a) declare or makepay any dividends or make any other distribution or payment on account of or redeem, directly retire, defease or indirectlypurchase any capital stock (other than (i) the payment of dividends to Borrower or any Guarantor, (ii) absent the occurrence and the continuance of a Default or Event of Default before and after giving effect to any Restricted Paymentsuch payment, or incur any obligation (contingent or otherwise) the payment of dividends with respect to do so, except thatthe Series B Preferred Stock and the Series D Preferred Stock, so long as no Default shall have occurred and be continuing at such dividends do not exceed $500,000 in the time aggregate during any calendar year, (iii) the distribution of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares capital stock of its common Equity Intereststhe Borrower, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests and (other than Disqualified Equity Interestsiv) absent the occurrence and the continuance of such preferred Equity Interests a Default or in shares Event of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to Default before and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymentrepurchase payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the repurchase of shares, options or warrants thereof from employees, former employees, directors, former directors, consultants, former consultants, advisors or former advisors and their permitted transferees or estates, of Borrower or any of its Subsidiaries upon their death, termination of their employment or service period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Paymentsretirement, so long as such repurchase payments do not exceed $250,000 in the aggregate during any calendar year, and (iv) dividends payable exclusively in the capital stock of the Borrower), (b) make any payment in respect of management fees or consulting fees (or similar fees) to any equityholder or other affiliate of Borrower other than (i) fees for general and administrative services provided to Borrower and its Subsidiaries by Maxygen in an aggregate amount of all Restricted Payments made not to exceed [*] during any calendar year and (ii) royalties or other payments in connection with Intellectual Property licenses from Maxygen in an amount not to exceed the amounts calculated to be paid under the Maxygen License Agreement as may be amended pursuant to this clause Section 7.11, (c) be a party to or bound by an agreement that restricts a Subsidiary from paying dividends or otherwise distributing property to Borrower, (d) does not exceed $50,000,000 make any payments of intercompany Indebtedness that is owing by Borrower or any Guarantor (except as provided in any fiscal year the subordination terms of Holdings (it being understood that any “net down payments” made pursuant the applicable Intercompany Note then in effect with respect to clause such intercompany Indebtedness) or (e) belowpurchase or make any payment on or with respect to any Subordinated Indebtedness, shall not count towards such $50,000,000);
(e) except as expressly permitted by the Borrower may make Restricted Payments to Holdings so subordination terms thereof that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued have been approved by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Agent.
Appears in 3 contracts
Sources: Loan and Security Agreement (Codexis Inc), Loan and Security Agreement (Codexis Inc), Loan and Security Agreement (Codexis Inc)
Restricted Payments. Declare No Borrower shall, nor shall it permit any of its Subsidiaries to, (i) declare or makepay any dividends on or make any other distributions in respect of any class or series of its equity interests, or (ii) directly or indirectlyindirectly purchase, redeem, or otherwise acquire or retire any of its equity interests or any warrants, options, or similar instruments to acquire the same (each a “Restricted Payment”); provided, or incur any obligation (contingent or otherwise) however, that the foregoing shall not operate 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 therefromprevent:
(a) each the making of dividends or distributions by any direct or indirect Wholly-owned Subsidiary may make Restricted Payments of any Borrower to any Person that 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 madeits parent entity;
(b) Holdings each Borrower and each Subsidiary may declare and pay dividends with respect to its common Equity Interests make dividend payments or other distributions payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity or subordinated Ownership Interests (other than Disqualified Equity Interests) of such preferred Equity Person and any Borrower may issue common Ownership Interests or in shares upon the conversion of its common Equity subordinated Ownership Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to each Borrower and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Subsidiary may purchase, redeem or otherwise acquire Equity its Ownership Interests issued by it with the proceeds received from the substantially concurrent issue of new shares common or subordinated Ownership Interests;
(d) the MLP may make the Closing Date Distribution;
(e) the MLP may make the Over-Allotment Distribution on the Effective Date and/or from time to time within thirty (30) days thereafter;
(f) so long as no Default or Event of its Equity Interests Default has occurred and is continuing or would result therefrom and no violation of any Legal Requirement (other than Disqualified Equity Interestsincluding Section 17-607 of the Delaware Revised Uniform Limited Partnership Act) would result therefrom, the MLP may make Restricted Payments with respect to any fiscal quarter in an aggregate amount not to exceed Available Cash with respect to such fiscal quarter, so long as the Borrowers shall be in compliance (after giving pro forma effect to the making of such Restricted Payment) with the covenants contained Section 6.20(a), and the Borrowers shall have delivered an executed compliance certificate in the form of Exhibit E evidencing such compliance with Section 6.20(a); and
(g) Restricted Payments to officers, directors and employees pursuant to employment or benefit plans or agreements in an aggregate amount not to exceed $500,000 in any fiscal year.
Appears in 3 contracts
Sources: Credit Agreement (Delek US Holdings, Inc.), Credit Agreement (Delek Logistics Partners, LP), Credit Agreement (Delek Logistics Partners, LP)
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 thatthat the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to occur both before and after giving effect thereto, make (including i) Restricted Payments (other than Restricted Debt Payments) during any fiscal quarter in an aggregate amount not to exceed the Borrower’s Available Cash as of the end of the immediately preceding fiscal quarter; provided that, the Borrower and its Subsidiaries shall be in compliance (after giving pro forma effect to the making of such Restricted Payment) with all of the covenants contained in this Agreement, including, without limitation, Sections 6.10 through 6.12 and (ii) 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, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, and (y) less than 2.75 the Borrower, its Subsidiaries and the Holdco Entities shall be in compliance (after giving pro forma effect to 1.00 for each Measurement Period ending during the period commencing October 1making of such Restricted Payment) with all of the covenants contained in this Agreement, 2023 including, without limitation, Sections 6.10 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)6.12.
Appears in 3 contracts
Sources: 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, or incur any obligation (contingent or otherwise) to do sohowever, except that, that the Borrower and its Subsidiaries may declare and make the following Restricted Payments so long as no Default shall have occurred and be continuing at the time or Event of any action described below or Default would result therefrom:
(a) each Subsidiary the Borrower may declare or make Restricted Payments cash distributions to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings its shareholders (together with cash distributions of the type Heritage OP and the ▇▇▇▇▇▇▇ OP to its limited partners other than the Borrower) during any period of Equity Interest four consecutive fiscal quarters ending during the term of this Agreement in respect an aggregate amount not to exceed the greater of which (i) 95% of Funds From Operations of the Combined Group for such Restricted Payment is being madeperiod or (ii) the amount required to be distributed for the Borrower 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) Holdings and each Subsidiary the Borrower may declare and pay dividends with respect make cash distributions to its common Equity Interests payable solely in additional shares shareholders of its common Equity Interests, and, with respect capital gains resulting from gains from certain asset sales to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Intereststhe extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of such preferred Equity Interests or in shares of its common Equity Intereststhe Internal Revenue Code;
(c) Holdings a Subsidiary that is not a Wholly Owned Subsidiary may make any other Restricted Payments if immediately prior cash distributions to and after giving effect (including giving effect on a pro forma basis) to any holders of Equity Interests issued by such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterSubsidiary;
(d) Holdings the ▇▇▇▇▇▇▇ OP may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchaserepurchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from ▇▇▇▇▇▇▇ OP;
(e) Subsidiaries may pay Restricted Payments to the substantially concurrent issue Borrower or any other Subsidiary; and
(f) the Borrower may make cash payments to repurchase outstanding shares of new shares any of its Equity Interests (Interests. If an Event of Default shall exist, the Borrower shall not, and shall not permit any Subsidiary to, make any Restricted Payments to any Person other than Disqualified Equity Interests)(i) to the Borrower or any Subsidiary and (ii) cash distributions by the Borrower to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.13.
Appears in 3 contracts
Sources: Credit Agreement (Heritage Property Investment Trust Inc), Term Loan Agreement (Heritage Property Investment Trust Inc), Credit Agreement (Heritage Property Investment 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, 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 may make Restricted Payments to the Borrower or any Person that 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) Holdings and each Subsidiary may declare and pay dividends or other distributions with respect to its common Equity Interests payable solely in additional shares of its common Qualified Equity Interests or options to purchase Qualified Equity Interests, and, ; (b) Subsidiaries may declare and make Restricted Payments ratably with respect to its preferred their Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
; (c) Holdings so long as no Event of Default has occurred and is continuing, the Borrower may make any other Restricted Payments if immediately prior pursuant to and after giving effect in accordance with stock option plans or other benefit plans for present or former officers, directors, consultants or employees of the Borrower and its Subsidiaries (including giving effect on a pro forma basisi) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing in existence on the Effective Closing Date through September 30, 2023, and listed on Schedule 6.04 and (yii) less than 2.75 other such plans adopted following the Closing Date in an aggregate amount pursuant to 1.00 this subclause (ii) not to exceed $30,000,000 in any fiscal year (with unused amounts of such base amount available for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, use succeeding fiscal years so long as the aggregate amount of all Restricted Payments made expended pursuant to this clause subclause (dii) in any fiscal year does not exceed $50,000,000 in any fiscal year of Holdings 45,000,000); (it being understood that any “net down payments” made pursuant to clause d) [reserved]; (e) belowto the extent constituting Restricted Payments, shall not count towards the Borrower and the Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 6.07 (other than Section 6.07(a)); (f) repurchases of Equity Interests in the Borrower or any Subsidiary deemed to occur upon exercise of stock options or warrants if such $50,000,000);
Equity Interests represent a portion of the exercise price of such options or warrants; (eg) so long as no Event of Default has occurred and is continuing, the Borrower may make Restricted Payments to Holdings so that Holdings may pay dividends on, or repurchase or redeem, its Equity Interests from employees in connection with an aggregate amount not to exceed (i) $45,000,000 for the vesting year beginning on the Closing Date through the first anniversary of equity awardsthe Closing Date, in order to satisfy and (ii) for each year thereafter ending on the related tax withholding obligations; and
(f) Holdings may purchaseanniversary of the Closing Date, redeem or otherwise acquire Equity Interests issued the amount permitted during the previous year multiplied by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)1.1.
Appears in 3 contracts
Sources: Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc)
Restricted Payments. Declare (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, declare or makemake any Restricted Payment on or after the Second Amendment and Restatement Date, directly except that:
(i) any Restricted Subsidiary may declare and make Restricted Payments to the Borrower or indirectlyany other Restricted Subsidiary, but in the case of a Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, such Restricted Payment is made on a pro rata basis among equity holders holding the same series of Equity Interests in respect of which such Restricted Payment was made, subject to any tax-related adjustment as set forth in its charter or similar documents or agreements binding on such Restricted Subsidiary;
(1) the Borrower may purchase, redeem or otherwise acquire or retire for value any of its Equity Interests held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates), upon death, disability, retirement, severance or termination of employment in an amount not to exceed $5,000,000 in any Fiscal Year (with unused amounts in such Fiscal Year permitted to be carried over into succeeding Fiscal Years); and (2) the Borrower may repurchase any of its Equity Interests deemed to occur upon cashless exercise of stock options or warrants held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates) if such Equity Interests represent a portion of the exercise price, or withholding taxes payable in connection with the exercise, of such options or warrants;
(iii) the Borrower may, in connection with the payment of a dividend on its shares of common stock that is payable in additional shares of such common stock, pay cash in lieu of delivering fractional shares of such common stock;
(iv) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed, together with the aggregate amount of prepayments of Junior Debt made pursuant to Section 7.12(i)(I), the greater of (x) $175,000,000 and (y) 4.50% of Consolidated Total Assets determined as of the date of the most recent Restricted Payment made in reliance on this clause (iv);
(v) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent issuances of its Qualified Equity Interests; 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;
(vi) the Borrower and the Restricted Subsidiaries may make Restricted Payments to consummate the Transactions;
(vii) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (x) such payment would have complied with the provisions of this Agreement and (y) no Default occurred and was continuing;
(viii) the payment of dividends in an amount not to exceed $50,000,000 in any Fiscal Year (with unused amounts in any Fiscal Year permitted to be carried over to succeeding Fiscal Years, but subject to a maximum of $60,000,000 in any Fiscal Year); and
(ix) if the Available Amount Conditions have been met, additional Restricted Payments may be made in an amount up to the Available Amount (determined, with respect to each such Restricted Payment made in reliance on this clause (ix), solely as of the date it is made); provided that Restricted Payments may be declared and made pursuant to clause (ii), (iii), (iv), (viii) or (ix) only if at the time of, and after giving effect to, the 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 may make Restricted Payments to any Person that 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;continuing.
(b) Holdings The Borrower will not, and each will not permit any Restricted Subsidiary may declare and pay dividends with respect to, furnish any funds to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any Investment in an Unrestricted Subsidiary or other Restricted Payments if immediately prior Person for purposes of enabling it to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments Payment that could not be made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) directly by the Borrower may make or a Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees Subsidiary in connection accordance with the vesting provisions of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)this Section.
Appears in 3 contracts
Sources: Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, 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, or incur any obligation (contingent or otherwise) to do so, except thatfor, so long as no Default shall have occurred and be continuing exists at the time of any action described below making such Restricted Payment or would 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 any Person that owns 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) Holdings 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 pay dividends with respect to administrative expenses of the Holding Company and its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests Subsidiaries (other than Disqualified Equity Intereststhe Borrower and its Subsidiaries) in an aggregate amount not to exceed $15,000,000 for any period of such preferred Equity Interests or in shares of its common Equity Intereststwelve consecutive full calendar months;
(c) Holdings may make 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 Restricted Payments 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 immediately prior 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 giving effect the Fifth Restatement Effective Date; (including giving effect 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) to any basis as if such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing Payment had been made on the Effective Date 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 September 30(iv) above) may be paid from time to time but only in an amount not exceeding the amount of such obligations, 2023expenses or other amounts permitted under this clause (c), (y) less than 2.75 to 1.00 for each Measurement Period ending during as applicable, and at the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereaftertime the same are due and payable;
(d) Holdings may make 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 other Restricted Payments, so long as the aggregate amount Unrestricted Subsidiaries that are designated for purpose of all Restricted Payments made pursuant to making such dividends under this clause (d) does 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 $50,000,000 100,000,000 in any fiscal year of Holdings the Borrower (it being understood and agreed that any “net down payments” made pursuant the Borrower shall be permitted to clause (e) belowcarry forward $50,000,000 of unused amounts to the next succeeding fiscal year); provided that at the time of the declaration and making of each such dividend, the Borrower’s First Lien Indebtedness Ratio shall not count towards 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 $50,000,000)dividend had been declared and made on the last day of the most recent period of four consecutive fiscal quarters of the Borrower;
(ei) 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 may directly or indirectly from any Unrestricted Subsidiaries;
(m) payments of cash dividends to the Holding Company the proceeds of which are applied to make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees payments in connection with the vesting repurchase, redemption or repayment of equity awards, in order to satisfy the related tax withholding obligationsoutstanding Holding Company Convertible Notes; and
(fn) Holdings may purchaseLongevity 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 to the Borrower or any other such Wholly Owned Subsidiary; provided that, redeem notwithstanding anything in the Loan Documents to the contrary, no Designated SBG Subsidiary shall be permitted to make any dividend or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests other distributions, in cash or property (other than Disqualified Equity Interestsin its additional ownership interests), to the 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 such ownership interests or any option, warrant or other right to acquire any such ownership interests.
Appears in 3 contracts
Sources: Incremental Loan Amendment (Sinclair Broadcast Group Inc), Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)
Restricted Payments. Declare Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, 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 therefromexcept:
(a) each Subsidiary may make Restricted Payments to Borrower and any other Person that 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) Holdings and each Subsidiary member of the Consolidated Group may declare and pay dividends with respect to its make dividend payments or other distributions, and may make other Restricted Payments, in each case payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests Person or in shares of its common Equity InterestsParent;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as no Default shall have occurred and be continuing at the aggregate amount time thereof or would result therefrom, each member of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Consolidated Group may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent an issue of new shares of its common stock or other Equity Interests within ninety (90) days before such Restricted Payment;
(d) Borrower may make Restricted Payments to Parent and, to the extent corresponding distributions to other holders of its Equity Interests are required by its Organization Documents, to such other holders of Equity Interests, in amounts sufficient to permit Parent to make, and Parent may make, Restricted Payments, for any twelve (12)- month period, not to exceed an amount equal to the greater of: (i)(A) ninety-five percent (95%) multiplied by (B) Funds From Operations for such period and (ii) the aggregate amount of Restricted Payments required to be made by Parent in order for it to (A) maintain its REIT status and (B) avoid the payment of federal or state income or excise tax; provided that to the extent a Default is then-existing or would result from the making of such Restricted Payment by Parent (other than Disqualified a Default specified in Sections 10.01(f) or 10.01(g) or a Default that has resulted in Administrative Agent exercising its remedies under Section 10.02(b), in which case no Restricted Payments otherwise permitted under this clause (d) may be made), Borrower may only make Restricted Payments to Parent and, to the extent corresponding distributions to other holders of its Equity Interests are required by its Organization Documents, to such other holders of Equity Interests), in amounts sufficient to permit Parent to make, and Parent may make, Restricted Payments in the minimum amount required in order for Parent to (A) maintain its REIT status and (B) avoid the payment of federal or state income or excise tax;
(e) any member of the Consolidated Group may make non-cash Restricted Payments in connection with employee, trustee and director stock option plans or similar employee, trustee and director incentive arrangements; and
(f) so long as no Default shall have occurred and be continuing at the time thereof or would result therefrom, with respect to an equity award granted pursuant to an equity incentive compensation plan to any current or former director, employee, independent contractor or other service provider, in each case, of any of Parent, Borrower or Subsidiary thereof, (i) the withholding of Equity Interests to satisfy any applicable withholding Tax obligations and/or exercise or purchase price, (ii) the repurchase or acquisition by Parent or Borrower of such entity’s Equity Interests or (iii) the grant, award, modification or payment of any such equity award.
Appears in 3 contracts
Sources: Credit Agreement (Rexford Industrial Realty, Inc.), Credit Agreement (Rexford Industrial Realty, Inc.), Credit Agreement (Rexford Industrial Realty, Inc.)
Restricted Payments. Declare or make, directly 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, 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 to make dividends payable solely in the same class of Equity Interests of such Person, (b) any Subsidiary may make Restricted Payments dividends or other distributions payable to the Company (directly or indirectly through Subsidiaries), (c) any Person that owns Equity Interests in such SubsidiaryForeign Subsidiary may make dividends or other distributions payable to the Company, ratably according the Dutch Borrower, Checkpoint Systems Europe GmbH or Checkpoint Systems Holding GmbH (directly or indirectly through Subsidiaries), (d) each of Checkpoint Systems Europe GmbH and/or Checkpoint Systems Holding GmbH may make compensatory payments to their respective holdings Subsidiaries if and to the extent required under any domination and/or profit and loss pooling agreement (Beherrschungs- und/oder Ergebnisabfuhrungsvertrag) with such Subsidiary and (e) the Company may make other Restricted Payments so long as, after giving effect thereto (i) on a Pro Forma Basis, no Default or Event of Default shall then exist or would exist after giving effect thereto, (ii) the Credit Parties certify to the Administrative Agent and the Lenders that the Credit Parties will be in compliance on a Pro Forma Basis with all of the type terms and provisions of Equity Interest the financial covenants set forth in respect Section 5.9, (iii) immediately after the making of which such Restricted Payment is being made;
(bA) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests the Credit Parties shall have at least $50,000,000 (other than Disqualified Equity Interestsor the Foreign Currency Equivalent thereof) of such preferred Equity Interests cash on deposit in readily available funds (without causing any adverse tax consequences) and/or the ability to borrow under this Agreement without causing a violation of any covenant and (B) the Borrowers (in the aggregate) shall have the ability (but shall not be required) to borrow at least $20,000,000 (or in shares the Foreign Currency Equivalent thereof) under this Agreement without causing a Default or Event of its common Equity Interests;
Default and (civ) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) shall be less than 3.00 2.00 to 1.00 for each Measurement Period ending during the period commencing 1.0 on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)a Pro Forma Basis.
Appears in 2 contracts
Sources: Credit Agreement (Checkpoint Systems Inc), Credit Agreement (Checkpoint Systems Inc)
Restricted Payments. Declare No Credit Party shall, nor shall it permit any of its Subsidiaries to, 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 of the Borrower may make Restricted Payments to any Person that 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) Holdings and each Subsidiary the Borrower may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings may make redemptions or repurchases of Equity Interests in the Borrower from employees and former employees; provided that (x) the aggregate amount of all such redemptions or repurchases made pursuant to this clause (c) in any other Restricted Payments if immediately prior to Fiscal Year shall not exceed $2,000,000 and (y) after giving effect to any such redemption or repurchase on a Pro Forma Basis, no Default or Event of Default shall exist;
(including d) Restricted Payments consisting of announced dividends that satisfied the conditions of any other clause of this Section 8.4 at the time of announcement thereof;
(e) so long as no Default or Event of Default exists or would result therefrom, the making by the Borrower of quarterly dividend payments in respect of common stock of the Borrower in an aggregate amount not to exceed $10,000,000 in any Fiscal Year;
(f) Restricted Payments consisting of dividends paid by Zephyr Acquisition Company to Heritage Property & Casualty Insurance Company as a holder of preferred Equity Interests pursuant to the terms of a consent order issued by an applicable Insurance Regulatory Authority; and
(g) other Restricted Payments, so long as:
(i) no Default or Event of Default exists or would result therefrom;
(ii) on a Pro Forma Basis after giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is at least 0.25:1.00 (xa “quarter turn”) less than 3.00 to 1.00 the Consolidated Leverage Ratio required for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, of four (y4) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligationsFiscal Quarters most recently ended; and
(fiii) Holdings may purchaseafter giving effect to any such Restricted Payment, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue there remains at least Twenty-Five Million Dollars ($25,000,000) of new shares of its Equity Interests (other than Disqualified Equity Interests)Liquidity.
Appears in 2 contracts
Sources: Credit Agreement (Heritage Insurance Holdings, Inc.), Credit Agreement (Heritage Insurance Holdings, Inc.)
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 may make Restricted Payments to the Borrowers, the Subsidiary Guarantors and any other Person that 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) Holdings the Company and each Subsidiary may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings may make any other Restricted Payments if immediately prior to the Company and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(d) the Company may declare or pay cash dividends to its stockholders so long as (i) the aggregate amount of cash dividends declared or paid in any fiscal year pursuant to this clause (d) does not exceed an amount equal to 50% of the Consolidated Net Income for the immediately preceding fiscal year or (ii) at the time such dividend is declared or paid, as the case may be, the Consolidated Leverage Ratio (determined as of the date of such declaration or payment, as the case may be, after giving Pro Forma Effect to any Indebtedness incurred in connection therewith and after giving Pro Forma Effect to each other Specified Transaction that has occurred since the first day of the most recently ended Measurement Period for which financial statements are available) is less than 3.25 to 1.00; and
(e) the Company may purchase, redeem or otherwise acquire for cash Equity Interests issued by it so long as (i) the aggregate amount of purchases, redemptions and acquisitions made pursuant to this clause (e)(i) after the Closing Date does not exceed an amount equal to $300,000,000 or (ii) at the time such purchase, redemption or acquisition is made the Consolidated Leverage Ratio (determined as of the date of such purchase, redemption or acquisition after giving Pro Forma Effect to any Indebtedness incurred in connection therewith and after giving Pro Forma Effect to each other Specified Transaction that has occurred since the first day of the most recently ended Measurement Period for which financial statements are available) is less than Disqualified Equity Interests3.25 to 1.00 (for the sake of clarity, purchases, redemptions or acquisitions made pursuant to this clause (e)(ii) shall not count against the allowance under clause (e)(i)).
Appears in 2 contracts
Sources: Credit Agreement (Fresh Del Monte Produce Inc), Credit Agreement (Fresh Del Monte Produce Inc)
Restricted Payments. Declare or make, directly or indirectly, any Make Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, 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:
(ai) each Subsidiary except as set forth in clause (ii) below, the Borrower may make Restricted Payments declare and pay dividends payable with respect to its equity securities in any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings fiscal quarter of the type Borrower if after giving effect to such dividend, such dividend, when added to the amount of Equity Interest all other such dividends paid in respect the same fiscal quarter and the preceding three (3) fiscal quarters, would not exceed the greater of (A) ninety-five percent (95%) of its Funds from Operations for the four fiscal quarters ending prior to the quarter in which such Restricted Payment dividend is being madepaid or (B) the minimum amount of such dividends required under the Code to enable the Borrower to continue to maintain its status under the Code as a REIT, as evidenced (in the case of clause (B)) by a certification of Chief Financial Officer containing calculations in reasonable detail satisfactory in form and substance to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a) or (b) Holdings has occurred and each Subsidiary is continuing, the Borrower may declare and pay dividends with respect to its common Equity Interests equity securities which shall not exceed the minimum amount of such dividends required under the Code to enable the Borrower to continue to maintain its status under the Code as a REIT, as evidenced by a certification of Chief Financial Officer containing calculations in reasonable detail reasonably satisfactory in form and substance to Administrative Agent;
(iii) the Borrower may effect Stock repurchases to the extent permitted by Sections 8.3(l) or 8.3(m);
(iv) the Borrower may effect “cashless exercises” of options granted under the Borrower’s stock option plans;
(v) the Borrower may distribute rights or equity securities under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends (or effect Stock splits or reverse Stock splits) with respect to its equity securities payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)securities.
Appears in 2 contracts
Sources: Revolving Credit Agreement (New Plan Excel Realty Trust Inc), Secured Term Loan Agreement (New Plan Excel Realty Trust Inc)
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 or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings Subsidiaries of the type of Equity Interest Parent Borrower may pay dividends and make distributions in respect of which their Capital Stock to the Parent Borrower or any other Person (in such case, ratably based on such other Person’s equity ownership in such Restricted Payment is being madeSubsidiary) which owns Capital Stock of such Subsidiary;
(b) Holdings and each Subsidiary the Parent Borrower may declare and pay dividends with respect to its common Equity Interests make dividend payments or other distributions payable solely in additional shares the common stock or other common equity interests of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Intereststhe Parent Borrower;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Parent Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it shares of its common stock or other common equity interests or warrants or options to acquire any such shares with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests common stock or other common equity interests;
(d) the Parent Borrower may make other Restricted Payments in an aggregate amount not to exceed (i) per fiscal year, the greater of (x) $45,000,000 and (y) 1.00% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries as of such date plus (ii) the Available Amount; provided, that solely with respect to clause (ii) above, (A) Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis, is less than Disqualified Equity Interests4.50:1.00, (B) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis and (C) the Parent Borrower is in compliance with the financial covenants set forth in Section 7.1, determined as of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered pursuant to Section 6.1 and on a pro forma basis;
(e) the Parent Borrower may make other Restricted Payments so long as (i) the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis, is less than 3.75:1.00, (ii) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis and (iii) the Parent Borrower is in compliance with the financial covenants set forth in Section 7.1, determined as of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered pursuant to Section 6.1 and on a pro forma basis and
(f) repurchases of Capital Stock deemed to occur upon the exercise of options to purchase Capital Stock if such shares of Capital Stock represent a portion of the exercise price of such options. For purposes of determining compliance with this Section 7.6, (A) Restricted Payments need not be made solely by reference to one category described in this Section 7.6, but are permitted to be made in part under any combination thereof and of any other available exemption and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of more than one of the categories of permitted Restricted Payments described in this Section 7.6, the Parent Borrower, in its sole discretion, may divide or classify any such Restricted Payment (or any portion thereof) in any manner that complies with this Section 7.6 and will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one or more (as relevant) of the above clauses (or any portion thereof) and such item of Restricted Payment (or any portion thereof) shall be treated as having been made pursuant to only such clause or clauses (or any portion thereof).
Appears in 2 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Restricted Payments. Declare The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or incur make any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time distribution of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according their Property to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
holders, except (bi) Holdings and each Subsidiary the Parent may declare and pay dividends or distributions with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if so long as both before and immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Consolidated Leverage Ratio Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is (x) equal to or less than 3.00 to 1.00 for each Measurement Period ending during 1.00, the period commencing on Borrower may declare and pay cash dividends to the Effective Date through September 30Parent, 2023and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, (y) less than 2.75 the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as exceed $2,500,000 in the aggregate amount since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of all Restricted Payments made the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to this clause the terms of the agreements (dincluding employment agreements) does not exceed $50,000,000 in any fiscal year or plans (or amendments thereto) or other arrangements approved by the board of Holdings directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(ev) the Borrower may make Restricted Payments declare and pay dividends or distributions to Holdings so that Holdings may repurchase its Equity Interests from employees the Parent in connection with an amount equal to (A) Taxes then due and owing by the vesting Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of equity awardsany markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue ordinary course of new shares of its Equity Interests (other than Disqualified Equity Interests)business.
Appears in 2 contracts
Sources: Credit Agreement (Legacy Reserves Inc.), Credit Agreement (Legacy Reserves Lp)
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 or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings Subsidiaries of the type of Equity Interest Parent Borrower may pay dividends and make distributions in respect of which their Capital Stock to the Parent Borrower or any other Person (in such case, ratably based on such other Person’s equity ownership in such Restricted Payment is being madeSubsidiary) which owns Capital Stock of such Subsidiary;
(b) Holdings and each Subsidiary the Parent Borrower may declare and pay dividends with respect to its common Equity Interests make dividend payments or other distributions payable solely in additional shares the common stock or other common equity interests of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Intereststhe Parent Borrower;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Parent Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it shares of its common stock or other common equity interests or warrants or options to acquire any such shares with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests common stock or other common equity interests;
(d) the Parent Borrower may make other Restricted Payments in an aggregate amount not to exceed (i) per fiscal year, the greater of (x) $45,000,000 and (y) 1.00% of Consolidated Total Assets of the Parent Borrower and its Restricted Subsidiaries as of such date plus (ii) the Available Amount; provided, that solely with respect to clause (ii) above, (A) Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis, is less than Disqualified Equity Interests4.50:1.00, (B) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis and (C) to the extent any Loans or Commitments are outstanding that are included in the determination of Required Pro Rata Lenders, the Parent Borrower is in compliance with the financial covenants set forth in Section 7.1, determined as of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered pursuant to Section 6.1 and on a pro forma basis;
(e) the Parent Borrower may make other Restricted Payments so long as (i) the Consolidated Total Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis, is less than 3.75:1.00, (ii) no Default or Event of Default shall exist immediately before or immediately after giving effect thereto on a pro forma basis and (iii) to the extent any Loans or Commitments are outstanding that are included in the determination of Required Pro Rata Lenders, the Parent Borrower is in compliance with the financial covenants set forth in Section 7.1, determined as of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered pursuant to Section 6.1 and on a pro forma basis and
(f) repurchases of Capital Stock deemed to occur upon the exercise of options to purchase Capital Stock if such shares of Capital Stock represent a portion of the exercise price of such options. For purposes of determining compliance with this Section 7.6, (A) Restricted Payments need not be made solely by reference to one category described in this Section 7.6, but are permitted to be made in part under any combination thereof and of any other available exemption and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of more than one of the categories of permitted Restricted Payments described in this Section 7.6, the Parent Borrower, in its sole discretion, may divide or classify any such Restricted Payment (or any portion thereof) in any manner that complies with this Section 7.6 and will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one or more (as relevant) of the above clauses (or any portion thereof) and such item of Restricted Payment (or any portion thereof) shall be treated as having been made pursuant to only such clause or clauses (or any portion thereof).
Appears in 2 contracts
Sources: Amendment No. 4 (Somnigroup International Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Make Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, 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:
(ai) each Subsidiary except as set forth in clause (ii) below, the Borrower may make Restricted Payments declare and pay dividends payable with respect to its equity securities in any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings fiscal quarter of the type Borrower if after giving effect to such dividend, such dividend, when added to the amount of Equity Interest all other such dividends paid in respect the same fiscal quarter and the preceding three (3) fiscal quarters, would not exceed the greater of (A) ninety-five percent (95%) of its Funds from Operations for the four fiscal quarters ending prior to the quarter in which such Restricted Payment dividend is being madepaid or (B) the minimum amount of such dividends required under the Code to enable the Borrower to continue to maintain its status under the Code as a REIT, as evidenced (in the case of clause (B)) by a certification of Chief Financial Officer containing calculations in reasonable detail satisfactory in form and substance to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a) or (b) Holdings has occurred and each Subsidiary is continuing, the Borrower may only declare and pay dividends with respect to its common Equity Interests equity securities which shall not exceed the minimum amount of such dividends required under the Code to enable the Borrower to continue to maintain its status under the Code as a REIT, as evidenced by a certification of Chief Financial Officer containing calculations in reasonable detail reasonably satisfactory in form and substance to Administrative Agent;
(iii) the Borrower may effect Stock repurchases to the extent permitted by Sections 8.3(l) or 8.3(m);
(iv) the Borrower may effect “cashless exercises” of options granted under the Borrower’s stock option plans;
(v) the Borrower may distribute rights or equity securities under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends (or effect Stock splits or reverse Stock splits) with respect to its equity securities payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)securities.
Appears in 2 contracts
Sources: Term Loan Agreement (New Plan Excel Realty Trust Inc), Term Loan Agreement (New Plan Excel Realty Trust Inc)
Restricted Payments. Declare (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, declare or makemake any Restricted Payment on or after the Third Amendment and Restatement Effective Date, directly except that:
(i) any Restricted Subsidiary may declare and make Restricted Payments to the Borrower or indirectlyany other Restricted Subsidiary, but in the case of a Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, such Restricted Payment is made on a pro rata basis among equity holders holding the same series of Equity Interests in respect of which such Restricted Payment was made, subject to any tax-related adjustment as set forth in its charter or similar documents or agreements binding on such Restricted Subsidiary;
(1) the Borrower may purchase, redeem or otherwise acquire or retire for value any of its Equity Interests held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates), upon death, disability, retirement, severance or termination of employment in an amount not to exceed $5,000,000 in any Fiscal Year (with unused amounts in such Fiscal Year permitted to be carried over into succeeding Fiscal Years); and (2) the Borrower may repurchase any of its Equity Interests deemed to occur upon cashless exercise of stock options or warrants held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates) if such Equity Interests represent a portion of the exercise price, or withholding taxes payable in connection with the exercise, of such options or warrants;
(iii) the Borrower may, in connection with the payment of a dividend on its shares of common stock that is payable in additional shares of such common stock, pay cash in lieu of delivering fractional shares of such common stock;
(iv) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed, together with the aggregate amount of prepayments of Junior Debt made pursuant to Section 7.12(i)(I), the greater of (x) $175,000,000 and (y) 4.50% of Consolidated Total Assets determined as of the date of the most recent Restricted Payment made in reliance on this clause (iv);
(v) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent issuances of its Qualified Equity Interests; 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;
(vi) Restricted Payments to consummate the Transactions;
(vii) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (x) such payment would have complied with the provisions of this Agreement and (y) no Default occurred and was continuing;
(viii) the payment of dividends in an amount not to exceed $50,000,000 in any Fiscal Year (with unused amounts in any Fiscal Year permitted to be carried over to succeeding Fiscal Years, but subject to a maximum of $60,000,000 in any Fiscal Year); and
(ix) if the Available Amount Conditions have been met, additional Restricted Payments may be made in an amount up to the Available Amount (determined, with respect to each such Restricted Payment made in reliance on this clause (ix), solely as of the date it is made); provided that Restricted Payments may be declared and made pursuant to clause (ii), (iii), (iv), (viii) or (ix) only if at the time of, and after giving effect to, the 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 may make Restricted Payments to any Person that 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;continuing.
(b) Holdings The Borrower will not, and each will not permit any Restricted Subsidiary may declare and pay dividends with respect to, furnish any funds to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any Investment in an Unrestricted Subsidiary or other Restricted Payments if immediately prior Person for purposes of enabling it to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments Payment that could not be made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) directly by the Borrower may make or a Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees Subsidiary in connection accordance with the vesting provisions of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)this Section.
Appears in 2 contracts
Sources: Fifth Amendment and Restatement Agreement (Kindred Healthcare, Inc), Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc)
Restricted Payments. Declare or make, directly or indirectly, None of the Credit Parties will make any Restricted PaymentPayments; except
(i) Subsidiaries of the Borrower may pay dividends or make other payments or advances to the Borrower, (ii) the Borrower may pay dividends or incur any obligation make payments to the Parent Company (contingent A) pursuant to an intercompany tax sharing arrangement but only to an extent that the amount of such dividend or otherwiseother payment reflects the applicable tax liability of the Parent Company and its consolidated Subsidiaries which dividend or payment will be paid by the Parent Company, (B) to do soenable the Parent Company to pay ordinary and necessary expenses associated with the limited activities of the Parent Company, except that, so long such as no Default shall have occurred reasonable accounting and be continuing at the time of any action described below or would result therefrom:professional expenses to third parties and director's fees and reasonable expenses which director's fees
(a1) each Subsidiary in the case of directors which are Investors or officers, directors or employees of an Investor, directors' fees shall not exceed $50,000 in the aggregate in any single calendar year; and
(2) in the case of directors which are not Investors or officers, directors or employees of an Investor, directors' fees shall not be in excess of amounts which would be reasonable and customary for outside directors of similarly situated companies, and any and all state franchise taxes and similar taxes, and (C) in an amount necessary to redeem or otherwise purchase capital stock of the Management Group to the extent permitted by clause (iii) of this Section 7.7, (iii) any Credit Party may make Restricted Payments redeem or otherwise purchase capital stock of members of the Management Group in an aggregate cash amount (including in connection herewith payment or prepayment of Subordinated Debt owing to members of the Managing Group under Section 7.1(j) of up to $500,000 in any Person that owns Equity Interests calendar year (or if less than such amount is paid in any year, the "unused" portion may be carried-over for a period of three (3) successive calendar years and serve to increase amounts otherwise permitted 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, andsubsequent years, with respect purchases and redemptions in a given year being applied first to its preferred Equity Interestscarry-over amounts, payable solely beginning with the oldest carry-over amounts and working forward to the most recent carry-over amounts, and then to the amount permitted for the year in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior which they are made), but not to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending exceed $2,500,000 during the period commencing on the Effective Date through September 30term of this Credit Agreement, 2023provided, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as that the aggregate amount of all Restricted Payments made any such redemptions may be increased in a given fiscal year by an amount equal to actual cash consideration received in such fiscal year from members of the Management Group from the sale of capital stock, (iv) the portion of Net Proceeds from any Equity Transaction which is not paid to the Banks for application to the Revolving Loans may used to prepay (with a corresponding commitment reduction in the case of any revolving Funded Debt) Funded Debt of the Borrower and/or its Subsidiaries in accordance with the provisions of Section 6.15, (v) upon issuance of the Exchange Debentures in accordance with Section 7.11, the Parent Company may repurchase fractional shares of and pay accrued dividends owing with respect to the Senior Preferred Stock and (vi) pursuant to this clause (d) does not exceed $50,000,000 in the terms of the Recapitalization Agreement, any fiscal year of Holdings (it being understood that any “net down payments” payments made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Recapitalization.
Appears in 2 contracts
Sources: Credit Agreement (Cottontops Inc), Credit Agreement (Anvil Holdings Inc)
Restricted Payments. Declare The Company shall not, nor shall it permit any Subsidiary to, make or make, directly or indirectly, declare any Restricted Payment, Payments (other than Restricted Payments by a Subsidiary to the Company or incur any obligation (contingent or otherwiseanother Wholly-Owned Subsidiary) to do so, except that, that so long as no Default shall have occurred or Unmatured Default then exists, the Company and be continuing at the time of its Subsidiaries may (i) repurchase shares from its employees, officers or directors pursuant to any action described below or would result therefrom:
vesting provisions with respect thereto; (aii) each Subsidiary may make Restricted Payments not to exceed (x) in any Person that owns Equity Interests twelve month period, an aggregate amount equal to fifty percent (50%) of Net Income plus, to the extent deducted in determining Net Income for such Subsidiaryperiod, ratably according to their respective holdings of the type of Equity Interest non-cash expenses in respect of which such Restricted Payment is being made;
stock options, in each case, for the previous twelve month period and (by) Holdings and each Subsidiary may declare and pay dividends subject to pro forma compliance with respect to its common Equity Interests payable solely the Fixed Charge Coverage Ratio, an additional $50,000,000 over the term of this Agreement; (iii) make acquisitions of Capital Stock of the Company in additional connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations; (iv) purchase of fractional shares of the Capital Stock of the Company arising out of stock dividends, splits or combinations or business combinations; (v) in connection with any Permitted Acquisition, (A) receive or accept the return to the Company or any of its common Equity InterestsSubsidiaries of Capital Stock of the Company or any of its Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims or (B) make payments or distributions to dissenting stockholders pursuant to applicable law; (vi) honor any conversion request by a holder of any Convertible Indebtedness of the Company or any of its Subsidiaries, andand make cash payments in lieu of fractional shares in connection with the conversion of such Convertible Indebtedness; (vii) purchase, with respect to redeem, repurchase, defease, acquire or retire for value Capital Stock or Subordinated Indebtedness of the Company or any of its preferred Equity InterestsSubsidiaries in exchange for, payable solely in additional Equity Interests upon conversion of, or out of the proceeds of, the substantially concurrent sale of Capital Stock of the Company (other than Disqualified Equity InterestsStock) of such preferred Equity Interests whether contemporaneously or in shares of its common Equity Interests;
the future; and (cviii) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem redeem, repurchase, defease, acquire or otherwise acquire Equity Interests issued by it with retire for value any Subordinated Indebtedness in exchange for, or out of the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)of, any Subordinated Indebtedness incurred to refinance such Subordinated Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Trimble Navigation LTD /Ca/), Credit Agreement (Trimble Navigation LTD /Ca/)
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, 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 may make Restricted Payments dividends and distributions by any Credit Party to any Person that owns Equity Interests in such Subsidiaryother Credit Party (other than Parent), ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings employee loans permitted under Section 6.4(b), (c) payments of principal and each Subsidiary interest of Permitted Intercompany Indebtedness issued in accordance with Section 6.3 (provided that, upon the occurrence of a Default or Event of Default, the Lenders may declare provide notice that payments may no longer be made); (d) dividends by any Credit Party to Parent and immediately thereafter by Parent to Rand to pay dividends with respect to its common the Preferred Equity Interests payable solely required under Rand's certificate of designations as in additional shares effect on the date hereof so long as (i) no Default or Event of its common Equity InterestsDefault is then in existence or would reasonably be expected to result from the payment of such dividends and (ii) such dividend has been declared and paid in compliance with all applicable laws; (e) dividends by any Credit Party to Parent and immediately thereafter by Parent to Rand to pay the Credit Parties' ratable share of taxes, andParent and Rand's corporate overhead and directors' fees, in each case to the extent incurred in the ordinary course of business in accordance with a budget previously provided to the Agent and the Lenders; and (f) commencing March 3, 2008, dividends by any Credit Party to Parent and immediately thereafter by Parent to Rand to pay dividends with respect to its preferred Equity Interests, payable solely in additional Equity Interests Rand's common Stock so long as (other than Disqualified Equity Interestsi) the amount of such preferred Equity Interests dividends paid in any Fiscal Year does not exceed an amount equal to 50% of Parent's consolidated Excess Cash Flow in the prior Fiscal Year (as calculated from Parent's consolidated fiscal year-end financial statements), (ii) no Default or Event of Default is then in shares existence or would reasonably be expected to result from the payment of its common Equity Interests;
such dividends, (ciii) Holdings may make any other Restricted Payments if immediately prior to both before and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymentpayment, the Consolidated Leverage Senior Debt to EBITDA Ratio is (x) less than 3.00 2.00 to 1.00 for each Measurement Period ending during and the period commencing on the Effective Date through September 30, 2023Fixed Charge Coverage Ratio is greater than 1.30 to 1.00, (yiv) less than 2.75 such dividend has been declared and paid in compliance with all applicable laws, (v) all required dry dock and winter work has been completed, and (vi) all Vessel certifications are current and up to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)date.
Appears in 2 contracts
Sources: Credit Agreement (Rand Logistics, Inc.), Credit Agreement (Rand Acquisition CORP)
Restricted Payments. Declare The Borrower shall not and shall not permit any of its Subsidiaries to, declare, pay or make, or offer to pay or make any Restricted Payment (directly or indirectly, indirectly through any Restricted Payment, or incur any obligation (contingent or otherwiseAffiliate) to do so, except that, that so long as no Event of Default shall have occurred and be continuing at the time of exists immediately prior to any action described Restricted Payment otherwise permitted below or would result therefrom:
therefrom (other than with respect of clause (ii) below): (i) the Borrower may repurchase, redeem or otherwise acquire shares of, or options to purchase, Capital Stock of the Borrower or stock appreciation rights from directors, officers and employees (or their legal representatives or heirs, as the case may be) of the Borrower or any Subsidiary of the Borrower whose employment has terminated or who has died or retired or become disabled, or who has suffered some other hardship and with respect to whom the Board of Directors of the Borrower has otherwise determined to make such a repurchase, redemption or other acquisition in light of such hardship or upon the vesting of stock appreciation rights; provided that, (a) each the amounts paid in cash or other immediately available funds in connection with such Restricted Payments shall not exceed $7,000,000 in the aggregate after the date hereof and (b) the aggregate principal amount of Debt issued by the Borrower or any of its Subsidiaries to finance such Restricted Payments shall not exceed $5,000,000 in the aggregate at any time outstanding; (ii) any Subsidiary of the Borrower may make Restricted Payments to any Person that owns Equity Interests in such Subsidiaryratably among all of its equity holders; (iii) the Capital Stock of North American Site Developers, ratably according to their respective holdings Inc. owned by ▇▇▇▇▇▇▇ may be redeemed, repurchased or otherwise acquired for an amount not greater than $50,000 as part of the type of Equity Interest in respect of which such Restricted Payment is being made;
NASI Restructuring and (b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(eiv) the Borrower may make Restricted Payments not to Holdings so that Holdings may repurchase its Equity Interests from employees exceed $5,000,000 in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)aggregate for all such Restricted Payments made during any fiscal year.
Appears in 2 contracts
Sources: Credit Agreement (Great Lakes Dredge & Dock CORP), Credit Agreement (Great Lakes Dredge & Dock CORP)
Restricted Payments. Declare None of the Borrowers or Subsidiary Guarantors shall 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 therefromexcept:
(a) each any Subsidiary Guarantor may make Restricted Payments to a Borrower or another Subsidiary Guarantor (and, in the case of a Restricted Payment by a non-wholly owned Subsidiary Guarantor, to any Person that owns Borrower and any other Subsidiary Guarantor and to each other owner of Equity Interests in of such Subsidiary, ratably according to Subsidiary Guarantor based on their respective holdings relative ownership interests of the type relevant class of Equity Interest in respect of which such Restricted Payment is being madeInterests);
(b) Holdings the Borrowers and each Subsidiary Guarantors may declare and pay dividends with respect to its common Equity Interests make Restricted Payments payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional the Equity Interests (other than Disqualified Equity InterestsInterests not otherwise permitted by Section 7.03) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings may make any other Restricted Payments if immediately prior in an amount not to and after giving effect (including giving effect exceed the amount of Cash Flow Available for Distribution determined on a pro forma basis) to any the date of such Restricted Payment, Payment to the Consolidated Leverage Ratio is (x) less than 3.00 extent Not Otherwise Applied; provided the Restricted Payment Conditions are satisfied at the time such Restricted Payments are made; provided further that there shall not be any Restricted Payment of any Target Shares made pursuant to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterthis Section 7.06(c);
(d) Holdings may make Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received and the Borrower Representative elects to apply under this clause (d) or (ii) without duplication with the preceding clause (i), an amount equal to the proceeds distributed by the Acquired Business to any other Borrower or Subsidiary Guarantor from a Disposition in respect of property or assets acquired by the Acquired Business after the Closing Date by means of an Excluded Contribution, in each case, to the extent Not Otherwise Applied; provided that there shall not be any Restricted Payment of any Target Shares made pursuant to this Section 7.06(d);
(e) to the extent constituting Restricted Payments, so long as the Borrowers and the Subsidiary Guarantors may enter into and consummate transactions expressly permitted by any provision of Sections 7.02 (other than Sections 7.02(c) and (j)), 7.04 or 7.07 (other than Sections 7.07(d) or 7.07(i));
(f) repurchases of Equity Interests in any Borrower (or any Parent Company thereof) or Subsidiary Guarantor, with respect to which no cash or other consideration is paid by such Borrower or Subsidiary Guarantor, deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(g) the Borrowers and Subsidiary Guarantors may pay (or make Restricted Payments to allow any other Parent Company thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of any Borrower (or of any Parent Company thereof) from any future, present or former employee, officer, director, manager or consultant of such Borrower (or any Parent Company of such Borrower) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager 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, manager, director, officer or consultant of a Borrower (or any Parent Company thereof) or any of its Subsidiaries; provided that the aggregate amount of all Restricted Payments made pursuant to this clause (dg) does shall not exceed $50,000,000 15,000,000 in any fiscal calendar year of Holdings (it with unused amounts in any calendar year being understood carried over to succeeding calendar years); provided, further, that such amount in any “net down payments” made pursuant calendar year may be increased by an amount not to clause (e) below, shall not count towards such $50,000,000);exceed:
(ei) to the Borrower may make Restricted Payments extent contributed to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with any Borrower, the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the net cash proceeds received from the substantially concurrent issue sale of new shares of its Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of such Borrower’s Parent Company, in each case to members of management, managers, directors or consultants of such Borrower, any of its Subsidiaries or any of its Parent Company that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus
(ii) the net cash proceeds of key man life insurance policies received by any Borrower or Subsidiary Guarantor; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clause (i) and (ii) of this Section 7.06(g);
(h) Restricted Payments in an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.10(a)(iii), $10,000,000;
(i) any Borrower may make Restricted Payments to any Parent Company of such Borrower:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrowers, the Subsidiary Guarantors and the Acquired Business and Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrowers, the Subsidiary Guarantors and the Acquired Business;
(ii) the proceeds of which shall be used by such parent to pay franchise, excise and similar Taxes, and other fees and expenses, required to maintain its (or any of its Parent Companies’) corporate or other legal existence;
(iii) with respect to any taxable period or portion thereof during which a Borrower is a passthrough entity (including a partnership or disregarded entity) for U.S. federal income tax purposes, payments or distributions by any Borrower to any member or partner of such Borrower on or prior to each estimated tax payment date as well as each other applicable due date, in an aggregate amount such that each member or partner (or its direct or indirect members or partners, if applicable) of a Borrower receives, in the aggregate for such period, payments or distributions not to exceed such member or partner’s U.S. federal, state, and/or local income taxes (as applicable) attributable to its direct or indirect ownership of such Borrower and its Subsidiaries with respect to such taxable period (assuming that such member or partner is subject to tax at the highest combined marginal U.S. federal, state, and local income tax rates (including any tax rate imposed on “net investment income” by Section 1411 of the Code) applicable to an individual or, if higher, a corporation, resident in New York City (for the avoidance of doubt, regardless of the actual rate applicable to such member or partner), determined by (A) taking into account (1) the alternative minimum tax, (2) any U.S. federal, state, and/or local (as applicable) loss carryforwards of such member or partner available from losses of such member or partner attributable to its direct or indirect ownership of such Borrower and its Subsidiaries for prior taxable periods to the extent such loss is of a character that would allow such loss to be available to reduce taxes in the current taxable period (taking into account any limitations on the utilization of such loss to reduce such taxes and to the extent such loss had not already been utilized), (3) the character (e.g., long-term or short-term capital gain or ordinary or exempt) of the applicable income, and (4) any adjustment to such member’s or partner’s taxable income attributable to its direct or indirect ownership of such Borrower and its Subsidiaries as a result of any tax examination, audit, or adjustment with respect to any period or portion thereof, and (B) not taking into account (1) the application of Section 199A of the Code, and (2) the deductibility of state and local income taxes for U.S. federal income tax purposes) (any such payments or distributions permitted under clause (ii), above, or this clause (iii), a “Permitted Tax Distribution”);
(iv) to finance any Investment that would be permitted to be made pursuant to Section 7.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrowers or the Subsidiary Guarantors or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrowers or the Subsidiary Guarantors in order to consummate such Investment (it being understood that such contribution or merger shall not build any other basket hereunder);
(v) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of the Borrowers or any Parent Company of the Borrowers to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrowers, the Subsidiary Guarantors and the Acquired Business; and
(vi) the proceeds of which shall be used by any Parent Company of any Borrower to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by such parent (or any Parent Company thereof) that is directly attributable to the operations of the Borrowers, the Subsidiary Guarantors and the Acquired Business; and
(j) the Borrowers or the Subsidiary Guarantors may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Investment permitted under Section 7.02 and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms.
Appears in 2 contracts
Sources: Credit Agreement (GIC Private LTD), Credit Agreement (Blackstone Holdings III L.P.)
Restricted Payments. Declare or makeThe Credit Parties will not permit any Consolidated Party 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, 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 may to make Restricted Payments dividends or other distributions payable to any Person Credit Party (directly or indirectly through Subsidiaries); provided that owns Equity Interests the proceeds of any dividends or distributions made to the Parent in such Subsidiaryreliance of this clause (a) are subsequently contributed by the Parent to a Credit Party, ratably according (b) payments by any Consolidated Parties to their respective holdings of the type of Equity Interest Parent in respect of which such Restricted Payment is being made;
the tax liability of the affiliated group of corporations that file consolidated federal income tax returns (b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interestsor that file state or local income tax returns on a consolidated, andcombined, with respect to its preferred Equity Interestsunitary or similar basis), payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make loans, advances, dividends or distributions by any Consolidated Party to the Parent not to exceed $30,000,000 in any fiscal year to enable the Parent to pay (i) its costs (including all professional fees and expenses) incurred to comply with its reporting obligations under federal or state laws or in connection with reporting obligations in respect of any Indebtedness of the Parent permitted under Section 8.1, (ii) for corporate, administrative and operating expenses in the ordinary course of business (including, without limitation, costs and expenses in connection with advisory fees, commissions and expenses incurred by a Credit Party in connection with any Permitted Acquisition or other Restricted Payments if immediately prior business combination permitted under this Credit Agreement), (d) the repurchase, redemption or other acquisition or retirement for value of any Capital Stock or any option to acquire Capital Stock of the Parent held by members of senior management and other key employees of the Parent and its Subsidiaries in an aggregate cash amount not to exceed $20,000,000 in the aggregate following the Third Amendment Effective Date; provided that no Default or Event of Default exists either before or after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) belowas permitted by Section 8.8 or Section 8.9, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchasepayments of regularly scheduled cash interest payments and payments in kind of interest accrued, redeem or otherwise acquire Equity Interests issued by it in each case, in respect of any Subordinated Indebtedness to the extent permitted under the applicable subordination provisions thereof, (g) the refinancing of any Subordinated Indebtedness with the proceeds received from any Equity Issuance or other Subordinated Indebtedness to the substantially concurrent issue extent not required to be applied to the Loans hereunder pursuant to Section 3.3, (h) loans, advances, dividends or distributions by any Consolidated Party to the Parent to enable the Parent to make the payments or reimbursements of new shares fees and expenses to the extent permitted by Section 8.9(f), (i) loans, advances, dividends or distributions by any Consolidated Party to the Parent to enable the Parent to effect any repurchase, redemption or other acquisition or retirement for value of its Equity Interests any Capital Stock or any option to acquire Capital Stock of the Parent to the extent permitted by Section 8.7(d), (j) such other Restricted Payments in addition to the foregoing in a cash amount not to exceed $250,000,000 in the aggregate; provided that no Default or Event of Default exists either before or after giving effect to such Restricted Payment and (k) other Restricted Payments in an unlimited cash amount in the aggregate if the Consolidated Net Leverage Ratio at the time of such Restricted Payment is less than Disqualified Equity Interests)or equal to 2.50 to 1.00; provided that no Default or Event of Default exists either before or after giving effect to such Restricted Payment.
Appears in 2 contracts
Sources: Credit Agreement (Amn Healthcare Services Inc), Credit Agreement (Amn Healthcare Services Inc)
Restricted Payments. Declare The Borrower shall not, nor shall Parent or makeany Subsidiary to, directly declare or indirectly, make any Restricted Payment, ; provided that: ●(i) Parent may declare 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect cash distributions to its common Equity Interests payable solely equity holders in additional shares an aggregate amount not to exceed the greater of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 ninety-five percent (95%) of Parent’s Adjusted FFO for each Measurement Fiscal Quarter ending thereafter(excluding any regular distributions to holders of preferred partnership units in Borrower and distributions necessary to pay holders of preferred stock of Parent) for each Rolling Period (commencing with the Rolling Period ending during the period commencing on the Effective Date through September 30December 31, 20232024), or (y) less than 2.75 the amount necessary for Parent to 1.00 for be able to make distributionsRestricted Payments 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 Measurement Period ending case on Parent; provided further that, in either case, during the period commencing October 1continuance of an Event of Default, 2023 through December 31, 2024 or (zA) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (da) does shall not exceed $50,000,000 the amounts described in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (ey), and (B) below, shall not count towards such $50,000,000);
(e) no other cash distributionsRestricted Payments will be permitted; ●the Borrower may make Restricted Payments ratably to Holdings so that Holdings may repurchase the holders of its Equity Interests from employees to permit Parent to make the Restricted Payments permitted under clause (a) above; ●each Subsidiary may make Restricted Payments ratably to the holders of its Equity Interests; ●Parent, the Borrower or any Guarantor may declare and make dividend payments or other distributions payable solely in the common equity interests or other equity interests of such entity including (i) “cashless exercises” of options granted under any share option plan adopted by such entity, (ii) distributions of rights or 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 additional shares of its equity interests; ●Parent, the Borrower and each Guarantor may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in connection with the vesting exercise of warrants, options or other securities convertible into or exchangeable for equity awardsinterests of Parent, the Borrower or any Subsidiary; ●so long as no Change of Control results therefrom, Parent, the Borrower and each Subsidiary may make Restricted Payments in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it connection with the proceeds received from 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; ●so long as no Change of Control results therefrom, the substantially concurrent issue 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 extent not otherwise prohibited by the terms of new shares of this Agreement; and ●Parent may exercise any redemption or conversion rights with respect to its Equity Interests (in accordance with the terms of the governing documents setting out any such rights and, to the extent paid in cash from sources other than Disqualified a concurrent offering of Equity InterestsInterests of the Parent, subject to Section 8.25(a).
Appears in 2 contracts
Sources: Credit Agreement (Alpine Income Property Trust, Inc.), Credit Agreement (Alpine Income Property Trust, Inc.)
Restricted Payments. Declare The Borrower shall not, and shall not permit any other Loan Party or makeany Intermediate Subsidiary to, directly declare or indirectly, make any Restricted Payment; provided, or incur any obligation (contingent or otherwise) to do sohowever, except thatthat the Borrower, the other Loan Parties and Intermediate Subsidiaries may declare and make the following Restricted Payments so long as no Default shall have occurred and be continuing at the time or Event of any action described below or Default would result therefrom:
(ai) each the Borrower may declare or make Cash distributions to its shareholders with respect to any period of four consecutive fiscal quarters most recently ending in an aggregate amount not to exceed the greater of (x) 95.0% of Funds From Operations of the Borrower for such period or (y) the amount required to be distributed for the Borrower to remain in compliance with Section 7.10.;
(ii) the Borrower may make Cash distributions to its shareholders of capital gains resulting from gains from asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(iii) Loan Parties may make payments of (x) accrued interest in respect of the Subordinated Facility so long as such payments (A) are not made in Cash or Cash Equivalents (unless the Seventy-Five Percent Lenders have consented otherwise in writing), (B) take the form of Subordinated Debt or Equity Interest (other than Mandatorily Redeemable Stock that does not constitute Subordinated Debt) and (C) are payable on a non-accelerated basis at the rate and in accordance with the terms of the Subordinated Facility and (y) principal in respect of the Subordinated Facility so long as the Seventy-Five Percent Lenders have consented thereto in writing in their sole discretion;
(iv) a Loan Party (other than the Borrower) and an Intermediate Subsidiary may make Restricted Payments (other than Restricted Payments referred to in clause (c) of the definition of such term) to any Loan Party, any Intermediate Subsidiary and any other Person that owns a direct Equity Interests Interest in such SubsidiaryPerson, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(bv) Holdings and each a Loan Party or any Intermediate Subsidiary may declare and pay dividends with respect make Restricted Payments to its common permit such Loan Party or Intermediate Subsidiary to purchase, redeem, retire or acquire Equity Interests payable solely in additional shares of the Borrower held by any present (at the time of such transaction) or former director, officer or employee of the Borrower or any of its common Equity InterestsSubsidiaries or Joint Ventures (or the heirs, andestate, with respect to its preferred Equity Interestsfamily members, payable solely in additional Equity Interests (other than Disqualified Equity Interestsspouse or former spouse of any of the foregoing) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all such Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year 20,000,000 during the term of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000)this Agreement;
(evi) subject to the subordination terms of the Subordinated Facility and so long as no Default or Event of Default exists, the Borrower may make Restricted Payments pay amounts payable under Section 3.5, Section 3.9, Section 3.10(c) and Section 4.1(b) of the Subordinated Facility; and
(vii) in satisfaction of the Borrower’s obligation to Holdings so that Holdings may repurchase redeem any of its Equity Interests from employees non-voting Class B common stock issued by the Borrower in connection with the vesting Spin-Off, the Borrower may (x) issue common stock or (y) so long as no Default or Event of equity awardsDefault exists, pay Cash or Cash Equivalents in order an aggregate amount not in excess of $10,000,000 during the term of this Agreement. Notwithstanding the foregoing, but subject to satisfy the related tax withholding obligations; and
(ffollowing sentence, if a Default or Event of Default exists, the Borrower may only declare or make cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.10. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(e) Holdings may purchaseor Section 10.1.(f) shall exist, redeem or otherwise acquire Equity Interests issued by it with if as a result of the proceeds received from occurrence of any other Event of Default any of the substantially concurrent issue of new shares of its Equity Interests (Obligations has been accelerated pursuant to Section 10.2.(a), the Borrower shall not, and shall not permit any Subsidiary to, make any Restricted Payments to any Person other than Disqualified Equity Interests)to a Loan Party or an Intermediate Subsidiary that is a Wholly Owned Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Rouse Properties, Inc.), Credit Agreement (Rouse Properties, Inc.)
Restricted Payments. Declare or make, directly or indirectly, No Credit Party shall make any Restricted Payment, except (a) intercompany loans and advances between Borrowers to the extent permitted by Section 6.3, (b) dividends and distributions by Subsidiaries of any Borrower paid to such Borrower, (c) employee loans permitted under Section 6.4(b), (d) payments of principal and interest of Intercompany Notes issued in accordance with Section 6.3, (e) dividends to preferred shareholders of Agway with respect to Preferred Stock of Agway provided that such payments do not exceed more than $3,800,000 in the aggregate in any Fiscal Year, (f) redemptions of Common Stock of Agway in an amount not to exceed $250,000 in any Fiscal Year; (g) redemptions of Preferred Stock; (h) payments by Country Best A▇▇▇▇, LLC or incur Agway Holdings Inc. with respect to any obligation put options exercised by A. S▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr. (contingent "M▇ ▇▇▇▇▇▇▇▇") or otherwiseany affiliate of M▇. ▇▇▇▇▇▇▇▇ to whom M▇. ▇▇▇▇▇▇▇▇ has transferred his interest pursuant to the operating agreement of Country Best A▇▇▇▇, LLC dated as of August 6, 1997 in an amount not to exceed in the aggregate $1,200,000.00; (i) dividends of Common Stock of Agway in an amount not to do soexceed $200,000 in any single Fiscal Year; (j) Honorary Member Series HM Preferred Stock of Agway issued to retired members of Agway in an amount not to exceed $100,000 in any single Fiscal Year; and (k) cash distributions to the members of Country Best A▇▇▇▇, except thatLLC and Country Best-D▇▇▇▇▇▇ LLC as required under the operating agreements governing such entities, so long as provided Country Best A▇▇▇▇, LLC and Country Best-D▇▇▇▇▇▇ LLC hereby each agree that it shall not modify, amend or change the provisions of this operating agreements which relate to the calculation and payment of such distributions, provided, that (i) with respect to clauses (e), (f), (g) and (h), no Default shall have or Event of Default has occurred and be is continuing at the time of any action described below or would result therefrom:
after giving effect to such payments, and Borrowers collectively have Borrowing Availability of at least $20,000,000 after giving effect to such payments, or (aii) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares clauses (e), (f), (g) and (h), if a Default or Event of its common Equity InterestsDefault has occurred and is continuing, andand Borrowers' collectively have Borrowing Availability of at least $25,000,000, Borrowers may continue to make payments of interest and principal with respect to its preferred Equity InterestsSubordinated Debt unless (A) Agent provides Borrower Representative with written notice that such payments are no longer permitted, payable solely (B) any Event of Default has occurred and is continuing under Section 8.1(a), (C) any Credit Party fails or neglects to perform, keep or observe any of the provisions set forth in additional Equity Interests Section 1.4 or Annex C, or (other than Disqualified Equity InterestsD) of such preferred Equity Interests or the aggregate principal amount outstanding in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to Preferred Stock, Subordinated Debt and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, notes outstanding under the Consolidated Leverage Ratio Milford Note Program is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, Four Hundred and Forty Million Dollars (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests440,000,000).
Appears in 2 contracts
Sources: Credit Agreement (Agway Inc), Credit Agreement (Agway Inc)
Restricted Payments. Declare The Borrower shall not permit, nor shall it permit any Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided 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 may make Restricted Payments to any Person that 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;
(bi) Holdings and each Subsidiary Borrower may declare and pay dividends with respect or make cash distributions to its common Equity Interests payable solely equity holders in additional shares an aggregate amount not to exceed the greater of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 ninety-five percent (95%) of Borrower’s Adjusted FFO for each Measurement Period ending during the period commencing on the Effective Date through September 30Rolling Period, 2023, or (y) less than 2.75 the amount necessary for Borrower to 1.00 for 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 Measurement Period ending case on Borrower; provided, that, in either case, (A) during the period commencing October 1continuance of an Event of Default, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this 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, Borrower shall not make any cash distributions;
(b) each Subsidiary may make Restricted Payments ratably to the holders of its Equity Interests;
(c) the Borrower or any Guarantor may declare and make dividend payments or other distributions payable solely in the common equity interests or other equity interests of such entity including (i) “cashless exercises” of options granted under any share option plan adopted by such entity, (ii) distributions of rights or 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 additional shares of its equity interests;
(d) does not exceed $50,000,000 the Borrower and each Guarantor may 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 the Borrower or any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000)Subsidiary;
(e) so long as no Change of Control results therefrom, the Borrower and each Subsidiary may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting implementation of equity awardsor pursuant to any retirement, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchasehealth, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of new shares of its Equity Interests (other than Disqualified Equity Interests).compensation;
Appears in 2 contracts
Sources: Credit Agreement (CTO Realty Growth, Inc.), Credit Agreement (CTO Realty Growth, 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, so long as no Event of Default shall have has occurred and be continuing at the time of any action described below or would result therefrom:
is continuing, (a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Borrower may declare and pay dividends with respect to its common Equity Interests capital stock payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023stock, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(eb) the Borrower may make Restricted Payments pursuant to Holdings and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (c) any Subsidiary may declare and pay Restricted Payments to the Borrower or any other Subsidiary, and (d) the Borrower and its Subsidiaries may pay cash dividends and repurchase their respective stock from any Person which is not the Borrower or another Subsidiary so long as on the date of payment or repurchase (i) such cash dividends and stock repurchases do not exceed $150,000,000 in any single fiscal year, and (ii) the total of such cash dividends and stock repurchases during the term of this Agreement do not exceed an aggregate amount of $200,000,000 plus 40% of the Borrower's and its Subsidiaries' aggregate net income earned commencing with the fiscal year ending January 31, 1999, and each fiscal year thereafter; provided that Holdings may repurchase its Equity Interests from employees a payment in connection with the vesting repurchasing of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received certain warrants from the substantially concurrent issue shareholders of new shares of its Equity Interests FFL in an amount not to exceed $20,000,000 shall not be counted against the amounts set forth in clauses (other than Disqualified Equity Interests)i) and (ii) above.
Appears in 2 contracts
Sources: Loan Agreement (Fred Meyer Inc), Loan Agreement (Quality Food Centers Inc)
Restricted Payments. Declare The Company and Borrower will not, and will not permit any Restricted Subsidiary to, make any Restricted Investment or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do soif, 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymentthereto, the Consolidated Leverage Ratio is sum of (xi) less than 3.00 to 1.00 for each Measurement Period ending the aggregate amount of Restricted Payments made during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October from and after January 1, 2023 through December 311998 to and including the date of the making of the Restricted Payment in question, 2024 or plus (zii) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments Investments made pursuant to this clause by the Company or any Restricted Subsidiary during said period would exceed the sum of (dx) does not exceed $50,000,000 in 115,000,000 (Canadian) plus (y) 75% of Consolidated Net Income for such period, computed on a cumulative basis for said entire period (or if such Consolidated Net Income is a deficit figure for any fiscal year period within such period, then minus 100% of Holdings such deficit) plus (it being understood that any “z) an amount equal to the aggregate net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the cash proceeds received by the Company from the substantially concurrent issue of new shares of its Equity Interests issuance or sale after the Closing Date (other than Disqualified Equity Intereststo the Company or any Subsidiary) of shares of common stock of the Company (such sum described in clauses (x), (y) and (z) being referred to as the "Available Pool"). In addition to the foregoing restrictions, the Company will not make any Restricted Payments or any Restricted Investment if, at the time thereof or after giving effect thereto, any Default or Event of Default shall exist. The Company will not declare any dividend which constitutes a Restricted Payment payable more than 60 days after the date of declaration thereof. For the purposes of this Section 5.11, the amount of any Restricted Payment declared, paid or distributed in property shall be deemed to be the greater of the book value or fair market value (as determined in good faith by the Board of Directors of the Company) of such property at the time of the making of the Restricted Payment in question. In valuing any Restricted Investments for the purpose of applying the limitations set forth in this Section 5.11, such Restricted Investments shall be taken at the original cost thereof, without allowance for any subsequent write-offs or appreciation or depreciation therein, but less any amount repaid or recovered on account of capital or principal. For purposes of this Section 5.11, at any time when a corporation becomes a Restricted Subsidiary, all Restricted Investments of such corporation at such time shall be deemed to have been made by such corporation, as a Restricted Subsidiary, at such time.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Intertape Polymer Group Inc), Revolving Credit Agreement (Intertape Polymer Group Inc)
Restricted Payments. Declare or make, directly or indirectly, any (a) Permit the Borrower to make Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, 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:
(ai) each Subsidiary except as set forth in clause (ii) below, the Borrower may make Restricted Payments declare and pay dividends payable with respect to its equity securities in any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings fiscal quarter of the type Borrower if after giving effect to such dividend, such dividend, when added to the amount of Equity Interest all other such dividends paid in respect the same fiscal quarter and the preceding three (3) fiscal quarters, would not exceed the greater of (A) ninety-five percent (95%) of its Funds from Operations for the four fiscal quarters ending prior to the quarter in which such Restricted Payment dividend is being madepaid or (B) the minimum amount of such dividends required under the Code to enable the Borrower to continue to maintain its status under the Code as a REIT, as evidenced (in the case of clause (B)) by a certification of Chief Financial Officer containing calculations in reasonable detail satisfactory in form and substance to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a) or (b) Holdings has occurred and each Subsidiary is continuing, the Borrower may declare and pay dividends with respect to its common Equity Interests equity securities which shall not exceed the minimum such dividends required under the Code to enable the Borrower to continue to maintain its status under the Code as a REIT, as evidenced by a certification of Chief Financial Officer containing calculations in reasonable detail satisfactory in form and substance to Administrative Agent;
(iii) the Borrower may effect Stock repurchases to the extent permitted by Section 8.3(l);
(iv) the Borrower may effect "cashless exercises" of options granted under the Borrower's stock option plans;
(v) the Borrower may distribute rights or equity securities under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends (or effect Stock splits or reverse Stock splits) with respect to its equity securities payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)securities.
Appears in 2 contracts
Sources: Credit Agreement (New Plan Excel Realty Trust Inc), Term Loan Agreement (New Plan Excel Realty Trust Inc)
Restricted Payments. Declare The Borrower shall not, and shall not cause or makepermit any Restricted Subsidiary to, directly or indirectly, any make a Restricted Payment, except:
(a) the Closing Date Distribution;
(b) payments of cash, dividends, distributions, advances or incur other Restricted Payments by the Borrower or any obligation Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon (contingent i) the exercise of options or otherwisewarrants or (ii) the conversion or exchange of Equity Interests of any such Person;
(c) the repurchase, redemption or other acquisition or retirement for value of Equity Interests of the Borrower or any of the Restricted Subsidiaries held by any current or former officer, director or employee of the Borrower or any of the Restricted Subsidiaries (to do sothe extent granted to such Person in respect of performance of services for the Borrower or any of the Restricted Subsidiaries) (or their respective estates, except thatheirs, family members, spouses, former spouses or beneficiaries under their estates or other permitted transferees), pursuant to the terms of any equity subscription agreement, stock option agreement, shareholders’ agreement, compensation agreement or arrangement or similar agreement; provided that the aggregate amount of such acquisitions or retirements (excluding amounts representing cancellation of Indebtedness) shall not exceed $2,000,000 in any calendar year (with any portion of such $2,000,000 amount that is unused in any calendar year to be carried forward to successive calendar years and added to such amount, provided that the amount carried forward shall not exceed $6,000,000 at any time); provided further that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower after the Closing Date;
(d) the Borrower and each of the Restricted Subsidiaries may purchase, redeem or otherwise acquire its Equity Interests or make other Restricted Payments with the net cash proceeds received by the Borrower from the substantially concurrent issuance and sale of common stock of the Borrower;
(e) the repurchase of Equity Interests deemed to occur upon the exercise of stock or other equity options to the extent such Equity Interests represent a portion of the exercise price of those stock or other equity options and any repurchase or other acquisition of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants, incentives or other rights to acquire Equity Interests;
(f) prepayment of any Specified Junior Obligations with Refinancing Indebtedness thereof;
(g) repurchases of Specified Junior Obligations of the Borrower or any Restricted Subsidiary at a purchase price not greater than 100% of the principal amount of such Specified Junior Obligations in the event of an asset disposition, in each case plus accrued and unpaid interest thereon, to the extent required by the terms of such Specified Junior Obligations, but only if the Borrower has complied with and fully satisfied its obligations in accordance with Sections 5.7.2 [Dispositions] and 8.2.7 [Dispositions];
(h) so long as no Potential Default or Event of Default shall have occurred and be continuing or shall result therefrom, Restricted Payments in an aggregate amount up to the sum of (x) (I) $25,000,000 plus (II) $25,000,000 of payments to purchase Second Lien Notes prior to the Amendment No. 1 Effective Date minus (III) any Investments made pursuant to Section 8.2.4(r)(x) [Loans and Investments], and (y) the then Cumulative Credit; provided that, in the case of clause (y) of this clause (h), the Total Net Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be greater than 2.00:1.00 and the Borrower shall deliver to each Administrative Agent prior to the making of such Restricted Payment an Officer’s Certificate certifying compliance with the requirements of this clause (h) and setting forth calculations in reasonable detail showing such compliance;
(i) so long as no Potential Default or Event of Default shall have occurred and be continuing or shall result therefrom, any prepayment, redemption or repurchase of the Revenue Bonds; provided that (x) the Total Net Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be greater than 1.50:1.00, (y) at such time, after giving effect to such prepayment, redemption or repurchase, Total Liquidity shall be at least $275,000,000 and (z) the Borrower shall deliver to each Administrative Agent prior to the making of such prepayment, redemption or repurchase an Officer’s Certificate certifying compliance with the requirements of this clause (i) and setting forth calculations in reasonable detail showing such compliance;
(j) purchases or other acquisitions or retirements for value of any Equity Interests of the Borrower and Second Lien Notes in a combined aggregate amount not to exceed (x) with respect to each of the calendar year ended December 31, 2018 and the period from January 1, 2019 to the Amendment No. 1 Effective Date, $10,00,000 and (y) with respect to each of the period from the Amendment No. 1 Effective Date to December 31, 2019 and for each calendar year thereafter, $25,000,000 (or, if the Total Net Leverage Ratio at such time, calculated on a Pro Forma Basis, would be less than 1.50:1.00, $50,000,000); provided that at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect thereto, (including giving effect 1) no Event of Default or Potential Default shall exist, (2) Total Liquidity shall be at least $275,000,000, (3) for any usage of this clause after the Amendment No. 1 Effective Date, the Borrower shall be in compliance on a pro forma basisPro Forma Basis with the Financial Covenants, (4) to for any such Restricted Paymentusage of this clause after the Amendment No. 2 Effective Date for purchases or other acquisitions or retirements for value of any Equity Interests of the Borrower, the Consolidated Total Net Leverage Ratio is at such time, calculated on a Pro Forma Basis, shall not be greater than 2.00:1.00 and (x5) less than 3.00 the Borrower shall deliver to 1.00 for each Measurement Period ending during Administrative Agent prior to the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make making of any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made Payment pursuant to this clause (dj) does not exceed $50,000,000 in any fiscal year an Officer’s Certificate certifying compliance with the requirements of Holdings (it being understood that any “net down payments” made pursuant to this clause (ej) below, shall not count towards and setting forth calculations in reasonable detail showing such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligationscompliance; and
(fk) Holdings may purchasedividends to stockholders of the Borrower in an aggregate amount not to exceed $25,000,000 (or if, redeem or otherwise acquire Equity Interests issued by it at the time of the declaration thereof, the Total Net Leverage Ratio would be less than 1.50:1.00 and Total Liquidity would be at least $275,000,000, in each case calculated on a Pro Forma Basis, $50,000,000) in any calendar year (commencing with the proceeds received from calendar year ending December 31, 2019); provided that (1) no Potential Default or Event of Default shall exist at the substantially concurrent issue time of new shares declaration thereof (and no Event of its Equity Interests Default under Section 9.1.1 [Payments Under Loan Documents], Section 9.1.12 [Involuntary Proceedings] or Section 9.1.13 [Voluntary Proceedings] shall exist at the time of payment thereof, which shall be within 60 days of such declaration), (other 2) at the time of and after giving effect thereto, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants, (3) for any usage of this clause after the Amendment No. 2 Effective Date, the Total Net Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be greater than Disqualified Equity Interests2.00:1.00 and (4) the Borrower shall deliver to each Administrative Agent prior to the making of any Restricted Payment pursuant to this clause (k) an Officer’s Certificate certifying compliance with the requirements of this clause (k) and setting forth calculations in reasonable detail showing such compliance; provided that, with respect to Restricted Payments made on or after the Amendment No. 2 Effective Date pursuant to clauses (h), (j) and (k), the Specified Conditions shall be satisfied.
Appears in 2 contracts
Sources: Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Energy Inc.)
Restricted Payments. Declare (a) Except as otherwise provided in clauses (b), (c), (d), (e) or make(f) of this Section 5.04 or as contemplated and permitted by Section 2.06(a), the Credit Parties will not directly or indirectlyindirectly declare, order, pay or make any Restricted Payment or set aside any sum or property therefor without the Administrative Agent’s prior written consent.
(b) Unless an Event of Default shall have occurred and be continuing or would result from such proposed Restricted Payment, or incur any obligation a Credit Party may in the ordinary course of business make Restricted Payments consisting of Tax Distributions to its Equityholders.
(contingent or otherwisec) to do so, except that, so So long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:, any Credit Party may purchase Equity Interests, warrants, rights or options to acquire such Equity Interests from employees of such Credit Party and its Subsidiaries in connection with the termination of their employment in an aggregate amount not to exceed $250,000 in the aggregate during any Fiscal Year.
(ad) each Subsidiary Commencing in Fiscal Year 2012, after the prepayment required pursuant to Section 2.03(b)(ii) for the preceding Fiscal Year, the Credit Parties may make Restricted Payments pay cash dividends and distributions (other than management or similar fees) to any Person that owns Equity Interests in its Equityholder(s), so long as (i) no Default shall have occurred and be continuing or would result therefrom, (ii) the Consolidated Leverage Ratio (on a pro forma basis after giving effect to all such Subsidiarydividends or distributions) is less than 3.25 to 1.00, ratably according (iii) the Administrative Agent shall have received all financial statements and other information then required to their respective holdings be delivered pursuant to Section 6.05(a), (b), (c) and (f) for the most recently ended Fiscal Year and Fiscal Quarter, and (iv) the aggregate amount of such cash dividends and distributions shall not exceed an amount equal to (x) Excess Cash Flow for the preceding Fiscal Year minus (y) the amount of the type of Equity Interest prepayment required to be made pursuant to Section 2.03(b)(ii) in respect of which such Restricted Payment is being made;Excess Cash Flow; provided, that to the extent such dividends or distributions are not permitted to be paid under this Section 5.04(d) due to the occurrence and continuance of a Default, such dividends or distributions shall accrue until such dividends or distributions are permitted to be paid under this Section 5.04(d), and such maximum amount for such Fiscal Year referred to above shall be increased dollar-for-dollar by the amount of such unpaid dividends or distributions.
(be) Holdings So long as no Default shall have occurred and be continuing or would result therefrom, the Credit Parties may pay (i) the Specified Dividend on the Closing Date and (ii) Permitted Management Fees in each Subsidiary may declare and pay dividends with respect Fiscal Year to its common Equity Interests the extent permitted by the Management Fee Subordination Agreement after first paying the mandatory prepayment, if any, required by Section 2.03(b)(ii) which is payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;Fiscal Year.
(cf) Holdings may make In addition to any other Restricted Payments if immediately prior permitted under Section 5.04(d), the Credit Parties may make distributions (other than management or similar fees) to their Equityholder(s), so long as (i) no Default shall have occurred and after giving effect be continuing or would result therefrom, (including giving effect ii) the Consolidated Leverage Ratio (on a pro forma basisbasis after giving effect to all such dividends or distributions) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 3.25 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 20231.00, (yiii) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does such cash dividends and distributions shall not exceed $50,000,000 5,000,000 in the aggregate, and (iv) immediately before and immediately after giving pro forma effect to any fiscal year such dividend or distribution, the amount then available to be drawn under the Revolving Credit Loans, together with free cash on hand of Holdings (it being understood that any “net down payments” made pursuant to clause (e) belowthe Credit Parties, shall not count towards such be at least equal to $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)5,000,000.
Appears in 2 contracts
Sources: Loan Agreement (Hemisphere Media Group, Inc.), Loan Agreement (Hemisphere Media Group, Inc.)
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 or Event of Default shall have occurred and be continuing other than in respect of Restricted Payments made under paragraphs (a), (b), (e) which shall not be subject to the requirement that no Default be then continuing) at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Person that 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 madeGuarantors;
(b) Holdings the Borrower and each Subsidiary Guarantor may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares Person so long as no Change of its common Equity InterestsControl would result therefrom;
(c) Holdings may make any other Restricted Payments if immediately prior except to and after giving effect (including giving effect on a pro forma basis) the extent the Net Cash Proceeds thereof are required to any such Restricted Paymentbe applied to the prepayment of the Loans pursuant to Section 2.05(b)(iii), the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for Borrower and each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Guarantor may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new Equity Interests so long as no Change of Control would result therefrom;
(d) the Borrower may make (i) Restricted Payments under the Management Agreement constituting management fees in an aggregate amount not to exceed $500,000 in the aggregate in any Fiscal Year, and (ii) Restricted Payments to the PSP Investor in respect of its Class C Common Stock in an aggregate amount not to exceed $500,000 in the aggregate in any Fiscal Year (such Restricted Payments, the “Class C Common Stock Dividend”) plus, in each case, any accrued amounts permitted to be paid pursuant to the Management Subordination Agreements, in each case, so long as the Borrower demonstrates pro forma compliance with the financial covenants set forth in Section 7.11;
(e) the Borrower may declare and pay cash dividends to the Sponsor Investors not to exceed an amount necessary for the Sponsor Investors to pay (i) reasonable and customary corporate and operating expenses; provided that the aggregate amount of dividends under this clause (i) in any Fiscal Year shall not exceed $250,000 and (ii) franchise fees or similar taxes and fees required to maintain its corporate existence;
(f) Borrower may redeem Equity Interests acquired pursuant to the exercise of options by employees issued pursuant to an option plan approved by the board of directors or equivalent governing body of the Borrower in the ordinary course of business; provided that no Default or Event of Default shall have occurred and be continuing before or after giving effect to any such redemption and the Restricted Payments made pursuant to this Section 7.06(f) shall not exceed $1,000,000 in the aggregate over the term of this Agreement;
(g) the Borrower may purchase, redeem or otherwise retire Equity Interests in an aggregate amount not to exceed $5,000,000 during the term of this Agreement; provided that, before or after giving effect to any such purchase, redemption or acquisition of Equity Interests, (i) no Default or Event of Default shall have occurred and be continuing, and (ii) should any Restricted Payment cause the aggregate Restricted Payments permitted under this clause (g) to exceed $2,000,000, then such Restricted Payment (and any subsequent Restricted Payment thereafter made pursuant to this clause (g)) shall be permitted only to the extent that the Consolidated Total Lease Adjusted Leverage Ratio as set forth in the most recent Compliance Certificate received prior to such Disposition by the Administrative Agent pursuant to Section 6.02(a) is less than 4.00 to 1.00;
(h) the Borrower may make Restricted Payments required in connection with the Executive Officer Employment Agreement Stock Put/Call Rights in an aggregate amount not to exceed $5,000,000 over the life of this Agreement; provided that, before or after giving effect to any such Restricted Payment the Borrower is in compliance with the terms of this Agreement; and
(i) the Borrower may purchase fractional shares of its Equity Interests (other than Disqualified Equity Interests)the Borrower’s common stock arising out of stock dividends, splits or combinations or business combinations.
Appears in 2 contracts
Sources: Credit Agreement (NOODLES & Co), Credit Agreement (NOODLES & Co)
Restricted Payments. Declare or makeExcept as otherwise expressly permitted under the terms of this Agreement, directly or indirectly, no Credit Party will make any Restricted PaymentPayments; provided, or incur any obligation (contingent or otherwise) to do so, except however that, so long as no Default shall have or Event of Default has occurred and be continuing at the time of any action described below continues to exist, or would result therefrom:
(a) each Subsidiary may make Restricted Payments to from any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings of the type following, the Credit Parties shall be permitted to (i) distribute cash (by loan, dividend or distribution) to SHSI, (ii) make payments to the ▇▇▇▇ Pension Plan sufficient to fund the ▇▇▇▇ Pension Plan Deficiency therein relating to the excess of Equity Interest the benefit obligations over the plan assets in respect an amount not to exceed $900,000 in the aggregate (the “▇▇▇▇ Pension Plan Deficiency Payments”); (iii) make annual payments sufficient to fund the Credit Parties’ Self Insured Retention Fund insurance program (A) during the first year of which this Agreement, in an amount up to the actuarially determined unpaid liability (the “Estimated Insurance Liability”) and (B) in each year of this Agreement thereafter, in an amount equal to the increase in the Estimated Insurance Liability, in each case as set forth in an actuarial report issued by an independent actuary selected by the Credit Parties and reasonably satisfactory to the Agent; provided that prior to such Restricted Payment is being made;
funding the Borrowers deliver to the Agent the actuarial report evidencing the amount of the Estimated Insurance Liability for such period, (biv) Holdings make payments satisfying the UK Obligations not to exceed $3,000,000 in the aggregate during the term of this Agreement; provided that after giving effect to each such payment, the Borrowers shall be in pro forma compliance with all the financial ratios and each Subsidiary may declare restrictions set forth in Section 6.16, Section 6.17, Section 6.18, Section 6.19, Section 6.20 and pay dividends Section 6.21,, and (v) make payments or prepayments with respect to its common Equity Interests payable Indebtedness subordinated in right of payment to the Obligations solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of the extent such preferred Equity Interests payments or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made prepayments are expressly permitted pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year the terms of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the a related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Subordination Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Sunlink Health Systems Inc), Credit Agreement (Sunlink Health Systems Inc)
Restricted Payments. Declare The Parent and the Borrower shall not, and shall not permit any Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment; provided, or incur however, that the Parent, the Borrower and any obligation (contingent or otherwise) to do so, except that, Subsidiary may declare and make the following Restricted Payments so long as no Default shall have occurred and be continuing at the time or Event of any action described below or Default would result therefrom:
(a) each the Parent may declare or make cash distributions to its shareholders during the period of four consecutive fiscal quarters most recently ending in an aggregate amount not to exceed the greater of (i) 95% of Funds From Operations of the Parent for such period or (ii) the amount required to be distributed for the Parent to remain in compliance with Section 8.13.;
(b) the Parent may make cash distributions to its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(c) the Borrower or any Subsidiary may acquire the Equity Interests of a Subsidiary that is not a Wholly Owned Subsidiary;
(d) a Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to holders of Equity Interests issued by such Subsidiary;
(e) Subsidiaries may pay Restricted Payments to the Parent, the Borrower or any Subsidiary;
(f) the Parent may repurchase outstanding Equity Interests of the Parent in an amount not to exceed $50,000,000 in the aggregate during the term of this Agreement; and
(g) the Parent may redeem Equity Interests consisting of Preferred Stock of the Parent through the issuance of Equity Interests of the Parent. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Parent may only declare or make cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Parent to remain in compliance with Section 8.13. If a Default or Event of Default specified in Section 11.1.(f) or Section 11.1.(g) shall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 11.2.(a), the Parent shall not, and shall not permit any Subsidiary to, make any Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests to the Parent or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Guarantor.
Appears in 2 contracts
Sources: Credit Agreement (Corporate Office Properties Trust), Credit Agreement (Corporate Office Properties Trust)
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, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:except
(a) each Subsidiary may make the Borrower or any Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends or other distributions with respect to its common Equity Interests payable solely in additional shares of its common Qualified Equity Interests or options to purchase Qualified Equity Interests, and, ;
(b) Restricted Subsidiaries may declare and make Restricted Payments ratably with respect to its preferred their Equity Interests;
(c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for present or former officers, payable solely directors, consultants or employees of the Borrower and its Restricted Subsidiaries in additional an amount not to exceed $10,000,000 in any fiscal year (with any unused amount of such base amount available for use in the next succeeding fiscal year);
(d) the Borrower or any Restricted Subsidiary may declare and make Restricted Payments in an amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 6.06(a)(v), $50,000,000 in any fiscal year (with any unused amount of such base amount available for use in the next succeeding fiscal year);
(e) to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 6.07 (other than Section 6.07(a));
(f) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(g) so long as no Event of Default has occurred and is continuing or would arise after giving effect thereto, the Borrower may make other Restricted Payments in an aggregate amount not to exceed the sum of (x) $50,000,000 less any amounts used to prepay Indebtedness pursuant to Section 6.06(a)(iii)(A), plus (y) the Available Amount; provided that the Borrower may only make the Restricted Payments permitted under the foregoing clause (g)(y) so long as the Total Net Leverage Ratio on a Pro Forma Basis, as of the last day of the most recent fiscal year or fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b), would be no greater than 4.00:1.00;
(h) the Borrower or any Restricted Subsidiary may make unlimited Restricted Payments under this clause (h) so long as (A) on a Pro Forma Basis the Total Net Leverage Ratio as of the last day of the most recent fiscal year or fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) does not exceed 3.00 to 1.00 and (B) no Event of Default has occurred and is continuing or would arise after giving effect thereto;
(i) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Qualified Equity Interests of the Borrower, including Designated Preferred Stock;
(j) the declaration and payments of dividends on Disqualified Equity Interests permitted to be issued pursuant to Section 6.01;
(k) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Equity Interests) issued after the Closing Date in an amount not to exceed the net cash proceeds of such preferred Equity Interests or in shares of its common Equity Interests;
Designated Preferred Stock received by the Borrower (c) Holdings may make any other than from a Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000Subsidiary);
(el) the Borrower may make Restricted Payments made to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with consummate the vesting of equity awards, in order to satisfy Transactions and the related tax withholding obligationsSpin-Off; and
(fm) Holdings may purchasethe payment of dividends and distributions within sixty (60) days after the date of declaration thereof, redeem or otherwise acquire Equity Interests issued by it if at the date of declaration of such payment, such payment would have complied with the proceeds received from the substantially concurrent issue any other provision of new shares of its Equity Interests (other than Disqualified Equity Interests)this Section 6.04.
Appears in 2 contracts
Sources: Credit Agreement (Cable One, Inc.), Credit Agreement (Cable One, 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, 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Borrower may declare and pay dividends with respect to its common 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, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments pursuant to Holdings so that Holdings and in accordance with stock compensation plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) any Receivables Entity may repurchase its Equity Interests from employees in connection with declare and pay dividends or other distributions to the vesting of equity awardsBorrower or any wholly-owned Subsidiary thereof, in order to satisfy (e) the related tax withholding obligations; and
(f) Holdings Borrower and each Subsidiary may purchase, redeem or otherwise acquire its Equity Interests issued by it with the proceeds received from the substantially concurrent issue issuance of new shares Equity Interests of such Person, (f) the Borrower may declare and pay dividends in respect of its Equity Interests if, as of the date of the payment of such dividends and after giving effect to the payment thereof and any Indebtedness incurred in connection therewith, no Default has occurred and is continuing or would result and: (i) the Leverage Ratio (as calculated on a pro forma basis) is less than 2.5 to 1.00, or (ii) if the Leverage Ratio (as calculated on a pro forma basis) is equal to or greater than 2.5 to 1.00, then the aggregate amount of dividends paid under the permissions of this clause (f) during any fiscal year shall not exceed an amount equal to the greater of (A) $40,000,000, or (B) 25% of the Borrower’s Consolidated Net Income for the preceding fiscal year, and (g) in addition to the dividends permitted by clause (f) and the other than Disqualified Restricted Payments permitted by this Section 6.08, the Borrower may make other Restricted Payments (including repurchase of the Borrower’s Equity Interests)) if, as of the date of the payment of such Restricted Payment and after giving effect to the payment thereof and any Indebtedness incurred in connection therewith, no Default has occurred and is continuing or would result and: (i) the Leverage Ratio (as calculated on a pro forma basis) is less than 2.5 to 1.00, and (ii) if the Leverage Ratio (as calculated on a pro forma basis) is equal to or greater than 2.5 to 1.00, then the aggregate cash amount of all Restricted Payments made under the permissions of this clause (g) during the then current fiscal year shall not exceed an amount equal $40,000,000.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Arcosa, Inc.), Credit Agreement (Arcosa, 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, return any capital to its stockholders or incur make any obligation (contingent or otherwise) distribution of its Property to do soits Equity Interest holders, 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Borrower may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Capital Stock), (ii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(eiii) the Borrower may make Restricted Payments pursuant to Holdings so that Holdings and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (iv) the Borrower may repurchase its Equity Interests from employees declare and pay dividends in cash on the Effective Date to PLX in an amount not to exceed $312,000,000 for the purpose of (A) Redeeming the PLX Senior Subordinated Notes and (B) paying principal, interest, fees and other amounts owing in connection with the vesting termination of equity awardsthe Existing Credit Agreement, (v) the Borrower may declare and pay cash dividends to PLX and the General Partner (so long as the Borrower is a limited partnership) in order any fiscal year to satisfy pay the related tax withholding obligationsBorrower's allocated share of Taxes (as defined in the Tax Allocation Agreement as it exists on the date hereof) due in the fiscal year such dividend is declared under the Tax Allocation Agreement as it exists on the date hereof, (vi) payments contemplated by the Transition Agreements as in effect on the date hereof and the transactions contemplated thereby; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with provided that payments made pursuant to the proceeds received from the substantially concurrent issue of new shares of its Equity Interests Transition Agreements (other than Disqualified the Tax Allocation Agreement and payments permitted by clause (iv) and clause (vii)) shall be limited in an aggregate amount not to exceed $30,000,000, (vii) payments in respect of indemnity obligations under Transition Agreements in an aggregate amount not to exceed $10,000,000, and (viii) to the extent not permitted by clauses (i) to (vii) above, the Borrower may make Restricted Payments in respect of Equity InterestsInterests of the Borrower in an amount not to exceed $2,500,000 in the aggregate minus the aggregate principal amount of 2002 Senior Subordinated Notes Redeemed under Section 9.04(b)(i).
Appears in 2 contracts
Sources: Credit Agreement (Plains Resources Inc), Credit Agreement (Plains Exploration & Production Co L P)
Restricted Payments. Declare The Company will not, and will not permit any of its Subsidiaries to, declare or make, directly or indirectly, make any Restricted Payment, except that the Company may:
(i) provided that no Default has occurred and is continuing, purchase shares of any class of Capital Stock, or incur options to purchase such shares, of the Company from employees or former employees of the Company or its Subsidiaries in amounts not to exceed $500,000 in any obligation fiscal year and $1,000,000 in the aggregate after the Effective Date;
(contingent ii) make additional Restricted Payments constituting the purchase, redemption, retirement or otherwiseother acquisition of shares of any class of Capital Stock of the Company (such Restricted Payments, "STOCK REPURCHASES"), subject to the satisfaction of each of the following conditions on the date of such Stock Repurchase and after giving effect thereto:
(a) 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 may make Restricted Payments to any Person that 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;continuing; and
(b) Holdings and each Subsidiary may declare and pay dividends with respect the ratio of Senior Debt on the last day of the most recently completed fiscal quarter of the Company to its common Equity Interests payable solely in additional shares of its common Equity InterestsEBITDA for the four fiscal quarters then ended on a PRO FORMA basis, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect to any purchase, redemption or retirement of any Subordinated Indebtedness consummated on or prior to the date thereof and to any borrowings to finance the same and the Stock Repurchases is less than or equal to 2.0 to 1.
(including giving effect iii) declare and make dividend payments on any shares of any class of Capital Stock of the Company in an amount for all classes of such Capital Stock not to exceed $30,000,000 in the aggregate for any fiscal year through 2006 and $50,000,000 in the aggregate for any fiscal year from 2007 and thereafter; and
(iv) in addition to the dividend payments permitted by Section 9.15(iii), during the three-month period following each fiscal quarter ending on a pro forma basis) to any such Restricted Payment, fiscal quarter-end date on which the Consolidated Leverage Ratio for each of such fiscal quarter and the immediately preceding fiscal quarter is less than or equal to 4.0 to 1, declare and make dividend payments on shares of any class of Capital Stock of the Company in an aggregate amount for all classes of such Capital Stock not to exceed (x) less than 3.00 to 1.00 the sum of 50% of the net income on a consolidated basis for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, Company and its Subsidiaries for such fiscal quarter PLUS (y) less than 2.75 to 1.00 the excess of (I) the amount set forth in clause (x) for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or all previous such fiscal quarters OVER (zII) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments dividend payments actually made by the Company pursuant to this clause paragraph (d) does not exceed $50,000,000 in iv). Nothing herein shall be deemed to prohibit the payment of dividends by any fiscal year Subsidiary of Holdings (it being understood that the Company to the Company or to any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) other Subsidiary of the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Company.
Appears in 2 contracts
Sources: Credit Agreement (Iron Mountain Inc/Pa), Credit Agreement (Iron Mountain Inc/Pa)
Restricted Payments. Declare or make, directly or indirectly, The Borrower shall not make any Restricted Payment, or incur any obligation Payment other than (contingent or otherwisei) 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely amounts received by the Borrower in additional shares accordance with Section 9.01 (in the case of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity InterestsInterest Proceeds and Principal Proceeds) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments provision of this Agreement or the Facility Documents which expressly requires or permits payments to be made to or amounts to be reimbursed to the Equityholder, (ii) on the date of the initial Advance, to the Equityholder or any other seller of Collateral Assets in the amount set forth in the Notice of Borrowing and funds flow delivered to the Administrative Agent in connection with such Advance, (iii) using the proceeds of Advances if the Borrowing Base Test is satisfied immediately prior to and immediately after giving effect to such distribution; provided that any Restricted Payment made pursuant to clause (including iii) shall be limited to four such Restricted Payments per any calendar year or (iv) using amounts on deposit in the Principal Collection Account if (x) both immediately prior to and immediately after giving effect to such distribution, no Default or Event of Default has occurred or is continuing, (y) the Diversity Score as the date of such distribution equals or exceeds 16 and each Collateral Quality Test (other than the Minimum Diversity Score Test) is satisfied as of such date and (z) after giving effect to such distribution, on a pro forma basis, sufficient amounts will be available to pay amounts owing under items (A) to any such Restricted Payment, the Consolidated Leverage Ratio is through (xI) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood Section 9.01(a)(i); provided that any “net down payments” Restricted Payment made pursuant to clause (eiv) below, shall not count towards be limited to two such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so per any calendar year unless otherwise agreed by the Administrative Agent in its sole discretion; provided, further, that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received upon request from the substantially concurrent issue of new shares of Borrower, the Administrative Agent may waive the limitations set forth in clauses (iii) and (iv) with respect to Permitted RIC Distributions in its Equity Interests (other than Disqualified Equity Interests)sole discretion.
Appears in 2 contracts
Sources: Credit and Security Agreement (Diameter Credit Co), Credit and Security Agreement (Diameter Credit Co)
Restricted Payments. Declare or makeThe Borrowers shall not, and shall not permit any of their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment, except for the following:
(a) (i) in the case of any Wholly-Owned Subsidiary of any Borrower, Restricted Payments by such Subsidiary to such Borrower or incur any obligation Guarantor and (contingent ii) in the case any Permitted Joint Venture, any Restricted Payment made simultaneously by such Subsidiary to all Persons holding such Subsidiary's Stock; provided, however, that such Restricted Payments shall be on a pro rata basis based upon each such Person's ownership percentage of such Subsidiary's Stock (other than Restricted Payments of up to $13,000,000 required to be paid as a priority payment to Taihan Electric Wire Co., Ltd. under the Constituent Documents of NKL);
(b) dividends and distributions declared and paid on the Stock of the Company and payable only in Stock (other than any Disqualified Stock) of the Company; and
(c) cash dividends on the Stock of the Company in an aggregate amount not to exceed the following amounts paid and declared in any Fiscal Year ending after the Closing Date: (i) for the Fiscal Year ending December 31, 2005, $45,000,000 and (ii) for each Fiscal Year thereafter, 50% of the Consolidated Net Income of the Company for the previous Fiscal Year; provided, however, that the Restricted Payments described in this clause (c) shall not be permitted if a Default or otherwise) to do so, except that, so long as no Event of Default shall have occurred and be continuing at the time date of any action described below declaration or payment thereof or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests).
Appears in 2 contracts
Sources: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Restricted Payments. Declare or makeEach Credit Party will not, directly or indirectlyand will not permit any of its Subsidiaries, to make any Restricted Payment, or incur make any obligation (contingent or otherwise) to do sodeposit for any Restricted Payment, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefromother than:
(a) each Subsidiary may make Restricted Payments by any Subsidiary of a Credit Party to any Person that owns Equity Interests in its direct or indirect parent, so long as such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment direct or indirect parent is being madea Credit Party;
(b) Holdings and each Subsidiary may declare and Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its common Equity Interests Capital Stock payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests such Capital Stock (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsCapital Stock);
(c) Holdings may make any other Restricted Payments if immediately prior by any Immaterial Subsidiary to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafteranother Immaterial Subsidiary;
(d) Holdings may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans, in each case to the extent permitted hereunder, for management or employees of any other Restricted PaymentsCredit Party or any of its Subsidiaries; provided, so long as that the aggregate amount of all Restricted Payments made pursuant to under this clause (d) does not exceed $50,000,000 2,500,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000)calendar year;
(e) Permitted Subordinated Debt Payments so long as the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligationsPayment Conditions are satisfied; and
(f) Holdings Restricted Payments of cash actually paid in an aggregate amount not to exceed 50% of Consolidated EBITDA as of the last day of the most recently ended period of four fiscal quarters; provided, that, no Restricted Payment otherwise permitted under this Section 9.06 shall be permitted unless such Restricted Payment is made entirely with cash (except for Restricted Payments under clause (b)); and provided, further, that no Restricted Payment otherwise permitted under clause (d) or (f) shall be permitted to be made if, at the time of making any such Restricted Payment, any Event of Default or Material Default has occurred and is continuing or would result therefrom; provided, however, Parent may purchasepay any dividend permitted under clause (f) within 30 days after the date of declaration thereof, redeem or otherwise acquire Equity Interests issued by it if at the date of declaration such payment would have complied with the proceeds received from provisions of this Agreement (including the substantially concurrent issue other provisions of new shares this Section 9.06) so long as the aggregate amount of its Equity Interests (other than Disqualified Equity Interests)such dividend does not exceed 12.50% of Consolidated EBITDA as of the last day of the most recently ended period of four fiscal quarters.
Appears in 2 contracts
Sources: Credit Agreement (Verano Holdings Corp.), Credit Agreement (Verano Holdings Corp.)
Restricted Payments. Declare (i) Make or permit any of its Subsidiaries to make, directly or indirectly, any Restricted Payment, Payment or incur any obligation (contingent or otherwise) to do soRestricted Investment, except that, so long as no Default or an Event of Default shall have occurred and be continuing, BMCA may make, and may permit any of its Subsidiaries to make, directly or indirectly, any Restricted Payment or Restricted Investment so long as, at the time of such Restricted Payment or Restricted Investment and immediately after giving effect thereto, the aggregate amount of Restricted Payments made since the Closing Date and the aggregate amount of Restricted Investments made since the Closing Date and then outstanding (the amount expended for such purposes, if other than in cash, shall be the fair market value of such property as determined by the Board of Directors of BMCA in good faith as of the date of payment or investment) shall not exceed (when combined with all Restricted Payments and Restricted Investments since January 1, 2001) the sum of:
(a) 50% of the cumulative Consolidated Net Income (or minus 100% of the cumulative Consolidated Net Loss) of BMCA accrued during the period beginning January 1, 2001 and ending on the last day of the most recently completed fiscal quarter for which financial statements are available (treating such period as a single accounting period);
(b) 100% of the net cash proceeds, including the fair market value of property other than cash as determined by the Board of Directors of BMCA in good faith, as evidenced by a board resolution, received by BMCA from any Person (other than a Subsidiary of BMCA) from the issuance and sale subsequent to July 26, 2004 of Equity Interests of BMCA (other than Redeemable Equity Interests) or as a capital contribution; provided that, if the value of the non-cash consideration or contribution is in excess of $50,000,000, BMCA shall have received the written opinion of a nationally recognized investment banking firm that the terms thereof, from a financial point of view, are fair to the shareholders of BMCA or such Subsidiary, in their capacity as such (the determination as to the value of any non-cash consideration referred to in this clause (B) to be made by such investment banking firm), and such opinion shall have been delivered to the Administrative Agent;
(c) with respect to Restricted Investments made by any Loan Party after July 26, 2004, an amount equal to the net reduction in such Restricted Investments in any Person resulting from repayments of loans or advances, or other transfers of assets, in each case to any Loan Party or from the net cash proceeds from the sale or other disposition of any such Restricted Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Net Income (Loss)), or from designation of any Non-Recourse Subsidiary as a Loan Party, not to exceed, in each case, the amount of Restricted Investments previously made by the Loan Parties in such Person or Non-Recourse Subsidiary after July 26, 2004;
(d) 100% of the net cash proceeds received by BMCA from the exercise of options or warrants on BMCA’s Equity Interests (other than Redeemable Equity Interests) since July 26, 2004;
(e) 100% of the net cash proceeds received by BMCA from the conversion into Equity Interests (other than Redeemable Equity Interests) of convertible Debt or convertible Preferred Interests issued and sold (other than to a Subsidiary of BMCA) since July 26, 2004; and
(f) $60,000,000. The designation by BMCA or any of its Subsidiaries of a Subsidiary as a Non-Recourse Subsidiary shall be deemed to be the making of a Restricted Investment by BMCA in an amount equal to the outstanding Investments made by BMCA and its Subsidiaries in such Person being designated a Non-Recourse Subsidiary at the time of such designation.
(ii) Section 5.02(g)(i) shall not prevent the following, as long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below (or would result therefrom:therefrom other than pursuant to Section 5.02(g)(i):
(a) each Subsidiary may make the making of any Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings Payment or Restricted Investment within 60 days after (x) the date of declaration thereof or (y) the type making of Equity Interest a binding commitment in respect thereof; provided that at such date of which declaration or commitment such Restricted Payment is being madeor Restricted Investment complied with Section 5.02(g)(i);
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares any Restricted Payment or Restricted Investment made out of the net cash proceeds received by BMCA from the substantially concurrent sale of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests stock (other than Disqualified Equity Intereststo a Subsidiary of BMCA); provided that such net cash proceeds so utilized shall not be included in paragraph (a) in determining the amount of such preferred Equity Interests Restricted Payments or in shares of its common Equity InterestsRestricted Investments BMCA could make under Section 5.02(g)(i);
(c) Holdings may make any cumulative Investments in Non-Recourse Subsidiaries not in excess of $50,000,000 in the aggregate from July 26, 2004 determined as of the date of the Investment (the amount so expended, if other Restricted Payments if immediately prior than cash, to and after giving effect (including giving effect on be determined by BMCA’s Board of Directors, as evidenced by a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;board resolution); and
(d) Holdings may make repurchases of Equity Interests of BMCA, in each case from employees, former employees or directors of BMCA or any of its Subsidiaries (other Restricted Paymentsthan any Permitted Holder); provided, so long as however, that the aggregate amount of all Restricted Payments made under this clause (d) shall not exceed $3,000,000 in any Fiscal Year; provided, further, that if any portion of the aggregate amount of Restricted Payments permitted to be made pursuant to this clause (d) does shall not be made in a Fiscal Year, Restricted Payments pursuant to this clause (d) in amount not to exceed $50,000,000 to such unused portion may be made in any fiscal year of Holdings the subsequent Fiscal Year in addition to all other Restricted Payments permitted to be made pursuant to this clause (it being understood d) in that any “net down payments” Fiscal Year. Restricted Payments or Restricted Investments made pursuant to clause (eb), (c) below, or (d) of this clause (ii) shall not count towards such $50,000,000);
(e) be deducted in determining the Borrower may make amount of Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection or Restricted Investments made or then outstanding under Section 5.02(g)(i). For purposes of determining compliance with the vesting of equity awardsthis Section 5.02(g), in the event that a Restricted Payment meets the criteria of more than one of the types of Restricted Payments described above, BMCA in its sole discretion, may order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it and classify such Restricted Payment in any manner in compliance with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Intereststhis Section 5.02(g).
Appears in 2 contracts
Sources: Term Loan Agreement (Building Materials Manufacturing Corp), Term Loan Agreement (BMCA Acquisition Sub Inc.)
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, 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect Dividends to its common Equity Interests payable solely or for the benefit of the Borrower or any Guarantor, and (b) the Borrower may (i) make regularly scheduled interest payments on Subordinated Debt, (ii) make regularly scheduled interest payments on Additional Unsecured Senior Debt, (iii) subject to the proviso contained in additional shares of its common Equity Interestsclause (iv) below, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to declare and after giving effect pay Dividends (including giving effect the repurchase of Capital Stock of the Borrower), (iv) make regularly scheduled principal payments on a pro forma basis) to any such Restricted PaymentSubordinated Debt in existence as of the Effective Date; provided however, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount sum of all Restricted Payments made pursuant to clause (iii) above, this clause (div) does and clause (v) below shall not exceed an aggregate amount equal to the sum of (A) $50,000,000 35,000,000 plus (B) 50% of Cumulative Net Income after June 30, 2014, (v) make prepayments and regularly scheduled principal payments on Additional Unsecured Senior Debt in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to an aggregate amount taken together with amounts under clause (eA) belowof clause (iv) above, shall not count towards to exceed $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 Disposition of Assets on a pro rata basis with the prepayment of the Loans as may be required under Section 2.6, in each case if and to the extent required by the agreements governing such $50,000,000);
Additional Unsecured Senior Debt and (eviii) make a Special Dividend on the date the Senior Notes are issued; provided, that the Borrower may shall make no Restricted Payments under clause (b)(i), clause (b)(iii) or clause (b)(iv) unless there shall exist no Default or Event of Default prior to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order or after giving effect to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)any such proposed Restricted Payment.
Appears in 2 contracts
Sources: Credit Agreement (Enova International, Inc.), Credit Agreement (Cash America International 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, 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Borrower may declare and pay dividends with respect to its common 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, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments pursuant to Holdings and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) so that Holdings long as no Default has occurred and is 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 declare and pay dividends, and (e) so long as no Default has occurred and is continuing or will result therefrom, the Borrower may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other i) in any amount if the Adjusted Leverage Ratio is less than Disqualified Equity Interests1.00 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 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 2.00 to 1.00 (but greater 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. Notwithstanding (e)(i) above, 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 $25,000,000 limitation provided in (e)(ii) above.
Appears in 2 contracts
Sources: Credit Agreement (Kimball Electronics, Inc.), Credit Agreement (Kimball Electronics, Inc.)
Restricted Payments. Declare Each 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, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefromexcept:
(a) each Subsidiary may make (i) any Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to, or make other distributions to, the Dutch Borrower or any Restricted Subsidiary that is a direct parent of such Restricted Subsidiary and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Restricted Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Dutch Borrower or such Restricted Subsidiary) based on their relative ownership interests; and (ii) to the extent permitted by Section 6.04, any Restricted Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Restricted Subsidiary that is not the Dutch Borrower or a Restricted Subsidiary;
(b) [Reserved];
(c) the Dutch Borrower may make Restricted Payments to its common equityholders to purchase or redeem Equity Interests payable solely in additional (including related stock appreciation rights or similar securities) held by then-present or former directors, consultants, officers or employees of the Dutch Borrower or any of the Restricted Subsidiaries or by any Plan upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided that the aggregate amount of Restricted Payments under this Section 6.06(c) shall not exceed $15,000,000 in any Fiscal Year (with unused amounts in any calendar year being permitted to be carried over for the succeeding calendar year); provided further that such amount in any calendar year may be increased as the Dutch Borrower may elect by an amount not to exceed: (i) the cash proceeds received by the Dutch Borrower or any of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely Restricted Subsidiaries in additional such calendar year from the sale of Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests the Dutch Borrower or in shares any direct or indirect parent of its common Equity Interests;
the Dutch Borrower (c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basisthe extent contributed to the Dutch Borrower) to directors, consultants, officers or employees of the Dutch Borrower or its Restricted Subsidiaries or any such Restricted Payment, direct or indirect parent of the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on Dutch Borrower that occurs after the Effective Date through September 30Date, 2023, plus (yii) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafteramounts received in respect of key man life insurance policy proceeds;
(d) Holdings any Person may make any other Restricted Payments, noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any Person may make additional Restricted Payments after the Effective Date in an aggregate amount of with all other Restricted Payments made pursuant to this clause (de) does not to exceed $50,000,000 25,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000)the aggregate;
(ef) the Borrower any Person may make Restricted Payments to Holdings so minority shareholders of any Subsidiary that Holdings may repurchase its Equity Interests from employees in connection is acquired pursuant to a Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with the vesting respect to shares of equity awards, in order to satisfy the related tax withholding obligations; andsuch Subsidiary held by such shareholders;
(fg) Holdings the Dutch Borrower may purchase, redeem declare and make dividend payments or otherwise acquire Equity Interests issued by it with other distributions payable solely in the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests) of the Dutch Borrower;
(h) if the Consolidated Leverage Ratio as of the most recently ended Test Period is less than or equal to 1.00 to 1.00 (or 2.00 to 1.00 after consummation of a Qualified IPO), the Dutch Borrower may elect to make Restricted Payments to its shareholders in an amount not to exceed the Available Free Cash Flow Amount, such election to be specified as provided in a written notice of a Responsible Officer of the Dutch Borrower calculating in reasonable detail the amount of Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom and any related transactions (including, without limitation, the incurrence of any Indebtedness); provided further that, if the Consolidated Leverage Ratio as of the most recently ended Test Period is (i) greater than 1.00 to 1.00 (or 2.00 to 1.00 after consummation of a Qualified IPO) and less than or equal to 1.50 to 1.00 (or 2.50 to 1.00 after the consummation of a Qualified IPO), the amount of Restricted Payments permitted under in this clause (h), shall not exceed the lesser of (1) the Available Free Cash Flow Amount on the date of such Restricted Payment and (2) $25,000,000 (or $50,000,000 after consummation of a Qualified IPO) or (ii) greater than 1.50 to 1.00, (or 2.50 to 1.00 after the consummation of a Qualified IPO) the amount of Restricted Payments permitted under in this clause (h), shall not exceed the lesser of (1) the Available Free Cash Flow Amount on the date of such Restricted Payment and (2) $15,000,000 (or $30,000,000 after consummation of a Qualified IPO);
(i) the Dutch Borrower may distribute up to €250,000,000 to its equity holders, in one or more transactions, consummated no later than December 31, 2013;
(j) the Dutch Borrower or any Restricted Subsidiary may (i) make payments of cash, or dividends, distributions or advances to allow such Person to make payments of cash, in lieu of the issuance of fractional shares upon exercise of warrants or upon the conversion or exchange of Equity Interests of such Person and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion;
(k) the declaration and payment of dividends on the Dutch Borrower’s common stock following the first public offering of the Dutch Borrower’s common stock or the common stock of any of its direct or indirect parents after the Effective Date, of up to 6% per annum of the net proceeds received by or contributed to the Dutch Borrower in or from any such public offering, other than public offerings of common stock registered on Form S-4 or Form S-8; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom; and
(l) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 6.06.
Appears in 2 contracts
Sources: Credit Agreement (Constellium Holdco B.V.), Credit Agreement (Constellium Holdco B.V.)
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 that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefromexcept:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings of Holdings or the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary Borrower may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, stock;
(b) Subsidiaries may declare and pay dividends ratably with respect to its preferred Equity Interests, payable solely in additional their Equity Interests to the Borrower or any other Credit Party (other than Disqualified Equity InterestsHoldings or Freedom Holding, which are covered in clauses (d) of such preferred Equity Interests or in shares of its common Equity Interestsand (e) below);
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries;
(d) the Borrower may pay dividends to Holdings in respect of Permitted Corporate Expenses so long as (1) no Default or Event of Default would result therefrom, (2) the Borrower demonstrates, to the Administrative Agent’s reasonable satisfaction, pro forma compliance with the financial covenants set forth in 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 (4) if any portion of such dividend is used to pay amounts owing under the 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 required to comply with the financial covenants set forth in Sections 6.12 through 6.15, no more than the First PCE Dividend Amount shall be permitted to be paid for such quarter;
(e) Holdings may repurchase pay accrued dividends on its Equity Interests from employees in connection with the vesting outstanding preferred stock using proceeds of equity awards, in order to satisfy the related tax withholding obligationsdividends permitted under Section 6.06(d); and
(f) Holdings may purchaseso long as no Default or Event of Default is then outstanding or would result therefrom, redeem and Miami Casino Management, LLC (or otherwise acquire Equity Interests issued any successor thereto) remains subject to a subordination agreement in form and substance acceptable to the Administrative Agent, payments of Management Fees as and when required by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Management Agreement.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Florida Gaming Corp)
Restricted Payments. Declare (i) Make or permit any of its Subsidiaries to make, directly or indirectly, any Restricted Payment, Payment or incur any obligation (contingent or otherwise) to do soRestricted Investment, except that, so long as no Default or an Event of Default shall have occurred and be continuing, BMCA may make, and may permit any of its Subsidiaries to make, directly or indirectly, any Restricted Payment or Restricted Investment so long as, at the time of such Restricted Payment or Restricted Investment and immediately after giving effect thereto, the aggregate amount of Restricted Payments made since the Closing Date and the aggregate amount of Restricted Investments made since the Closing Date and then outstanding (the amount expended for such purposes, if other than in cash, shall be the fair market value of such property as determined by the Board of Directors of BMCA in good faith as of the date of payment or investment) shall not exceed (when combined with all Restricted Payments and Restricted Investments since January 1, 2001) the sum of:
(a) 50% of the cumulative Consolidated Net Income (or minus 100% of the cumulative Consolidated Net Loss) of BMCA accrued during the period beginning January 1, 2001 and ending on the last day of the most recently completed fiscal quarter for which financial statements are available (treating such period as a single accounting period);
(b) 100% of the net cash proceeds, including the fair market value of property other than cash as determined by the Board of Directors of BMCA in good faith, as evidenced by a board resolution, received by BMCA from any Person (other than a Subsidiary of BMCA) from the issuance and sale subsequent to July 26, 2004 of Equity Interests of BMCA (other than Redeemable Equity Interests) or as a capital contribution; provided that, if the value of the non-cash consideration or contribution is in excess of $50,000,000, BMCA shall have received the written opinion of a nationally recognized investment banking firm that the terms thereof, from a financial point of view, are fair to the shareholders of BMCA or such Subsidiary, in their capacity as such (the determination as to the value of any non-cash consideration referred to in this clause (B) to be made by such investment banking firm), and such opinion shall have been delivered to the Administrative Agent;
(c) with respect to Restricted Investments made by any Loan Party after July 26, 2004, an amount equal to the net reduction in such Restricted Investments in any Person resulting from repayments of loans or advances, or other transfers of assets, in each case to any Loan Party or from the net cash proceeds from the sale or other disposition of any such Restricted Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Net Income (Loss)), or from designation of any Non-Recourse Subsidiary as a Loan Party, not to exceed, in each case, the amount of Restricted Investments previously made by the Loan Parties in such Person or Non-Recourse Subsidiary after July 26, 2004;
(d) 100% of the net cash proceeds received by BMCA from the exercise of options or warrants on BMCA’s Equity Interests (other than Redeemable Equity Interests) since July 26, 2004;
(e) 100% of the net cash proceeds received by BMCA from the conversion into Equity Interests (other than Redeemable Equity Interests) of convertible Debt or convertible Preferred Interests issued and sold (other than to a Subsidiary of BMCA) since July 26, 2004; and
(f) $60,000,000. The designation by BMCA or any of its Subsidiaries of a Subsidiary as a Non-Recourse Subsidiary shall be deemed to be the making of a Restricted Investment by BMCA in an amount equal to the outstanding Investments made by BMCA and its Subsidiaries in such Person being designated a Non-Recourse Subsidiary at the time of such designation.
(ii) Section 5.02(g)(i) shall not prevent the following, as long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below (or would result therefrom:therefrom other than pursuant to Section 5.02(g)(i):
(a) each Subsidiary may make the making of any Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings Payment or Restricted Investment within 60 days after (x) the date of declaration thereof or (y) the type making of Equity Interest a binding commitment in respect thereof; provided that at such date of which declaration or commitment such Restricted Payment is being madeor Restricted Investment complied with Section 5.02(g)(i);
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares any Restricted Payment or Restricted Investment made out of the net cash proceeds received by BMCA from the substantially concurrent sale of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests stock (other than Disqualified Equity Intereststo a Subsidiary of BMCA); provided that such net cash proceeds so utilized shall not be included in paragraph (a) in determining the amount of such preferred Equity Interests Restricted Payments or in shares of its common Equity InterestsRestricted Investments BMCA could make under Section 5.02(g)(i);
(c) Holdings may make any cumulative Investments in Non-Recourse Subsidiaries not in excess of $50,000,000 in the aggregate from July 26, 2004 determined as of the date of the Investment (the amount so expended, if other Restricted Payments if immediately prior than cash, to and after giving effect (including giving effect on be determined by BMCA’s Board of Directors, as evidenced by a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;board resolution); and
(d) Holdings may make repurchases of Equity Interests of BMCA, in each case from employees, former employees or directors of BMCA or any of its Subsidiaries (other Restricted Paymentsthan any Permitted Holder); provided, so long as however, that the aggregate amount of all Restricted Payments made under this clause (d) shall not exceed $3,000,000 in any Fiscal Year; provided, further, that if any portion of the aggregate amount of Restricted Payments permitted to be made pursuant to this clause (d) does shall not be made in a Fiscal Year, Restricted Payments pursuant to this clause (d) in amount not to exceed $50,000,000 to such unused portion may be made in any fiscal year of Holdings the subsequent Fiscal Year in addition to all other Restricted Payments permitted to be made pursuant to this clause (it being understood d) in that any “net down payments” Fiscal Year. Restricted Payments or Restricted Investments made pursuant to clause (eb), (c) below, or (d) of this clause (ii) shall not count towards such $50,000,000);
(e) be deducted in determining the Borrower may make amount of Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection or Restricted Investments made or then outstanding under Section 5.02(g)(i). For purposes of determining compliance with the vesting of equity awardsthis Section 5.02(g), in the event that a Restricted Payment meets the criteria of more than one of the types of Restricted Payments described above, BMCA, in its sole discretion, may order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it and classify such Restricted Payment in any manner in compliance with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Intereststhis Section 5.02(g).
Appears in 2 contracts
Sources: Bridge Loan Agreement (Building Materials Manufacturing Corp), Bridge Loan Agreement (BMCA Acquisition Sub Inc.)
Restricted Payments. Declare Make or make, directly commit itself to make or indirectly, declare any Restricted PaymentPayment at any time, or incur any obligation (contingent or otherwise) to do so, except provided 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 may make Restricted Payments Capital Distributions to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that 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 Capital Distribution is being made;
(b) Holdings so long as no Default has occurred and is continuing or would result therefrom, the Borrower and its Subsidiaries may make payment of current interest, expenses and indemnities in respect of Subordinated Indebtedness (other than any such payments prohibited by the subordination provisions applicable thereto);
(c) the Borrower and each Subsidiary may declare and pay dividends make Restricted Payments with respect to its common Equity Interests payable solely in additional shares the proceeds received from the substantially concurrent issue of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its new common Equity Interests;
(cd) Holdings the Borrower and its Subsidiaries may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Paymentsnot otherwise permitted by this Section, so long as (i) no Default has occurred and is continuing or would result therefrom, (ii) after giving effect thereto the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” and Investments made pursuant to clause (e) belowSection 7.03(a)(xiv), shall not count towards exceed sum of (1) $25,000,000 plus (2) the Cumulative Retained Excess Cash Flow Amount, (iii) the Administrative Agent shall have received the certificate required by Section 6.02(n) and (iv) after giving pro forma effect to such $50,000,000Restricted Payment (and to any Indebtedness incurred in connection therewith), the Borrower and its Subsidiaries shall be in compliance with the Pro Forma Leverage Test;
(e) the Borrower may make Capital Distributions, consistent with its past practice, in the form of dividends to shareholders of Equity Interests in the Borrower; provided that (i) the aggregate amount of all such Capital Distributions shall not exceed $2,500,000 per fiscal quarter of the Borrower; and (ii) no Default shall have occurred and be continuing or would result from any such Capital Distribution;
(f) the Borrower and its Subsidiaries may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees constituting a prepayment of Indebtedness in connection with the vesting Refinancing of equity awardssuch Indebtedness;
(g) so long as no Default has occurred and is continuing or would result therefrom, each of Autocam do Brasil Usinagem, LTDA, Bouverat Industries S.A.S., and Autocam France, SARL may at any time repay its respective Indebtedness set forth on Schedule 7.02;
(h) the Borrower and its Subsidiaries may make payment of current interest, expenses and indemnities in order to satisfy respect of the related tax withholding obligationsNew Notes; and
(fi) Holdings the Borrower and its Subsidiaries may purchasemake Restricted Payments with respect to the New Notes not otherwise permitted by this Section, redeem so long as (i) no Default has occurred and is continuing or otherwise acquire Equity Interests issued by it with would result therefrom, and (ii) after giving pro forma effect to such Restricted Payment (and to any Indebtedness incurred in connection therewith), the proceeds Consolidated Secured Leverage Ratio of Borrower and its Subsidiaries shall be equal to or less than 2.00 to 1.00, determined based on the financial information received from for the substantially concurrent issue of new shares of its Equity Interests fiscal quarter (other than Disqualified Equity Interestsor fiscal year, as applicable) most recently ended prior to such date for which financial statements have been delivered to the Administrative Agent pursuant to Section 4.01(a)(x), 6.01(a) or 6.01(b), as applicable, after giving effect to such Restricted Payments.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Nn Inc), Credit Agreement (Nn Inc)
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 may make Restricted Payments to the Borrowers, the Subsidiary Guarantors and any other Person that 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 mademade and (ii) to the extent necessary to permit the Borrowers, the Subsidiary Guarantors and any other Person that owns an Equity Interest in such Subsidiary to discharge their consolidated tax liabilities;
(b) Holdings the Company and each Subsidiary may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings may make any other Restricted Payments if immediately prior to the Company and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(d) the Company may declare or pay cash dividends to its stockholders so long as the aggregate amount of cash dividends declared or paid in any fiscal year pursuant to this clause (d) does not exceed the greater of (i) an amount equal to the greater of (A) 50% of the Consolidated Net Income for the immediately preceding fiscal year or (B) $25,000,000 or (ii) the greatest amount which would not cause the Consolidated Leverage Ratio (determined as of the date of such declaration or payment, as the case may be, after giving Pro Forma Effect to any Indebtedness incurred in connection with such cash dividends and after giving Pro Forma Effect to each other Specified Transaction that has occurred since the first day of the most recently ended Measurement Period for which financial statements are available) to exceed 3.25 to 1.00; and
(e) the Company may purchase, redeem or otherwise acquire for cash Equity Interests issued by it so long as the aggregate amount of purchases, redemptions and acquisitions made pursuant to this clause (e) does not exceed the greater of (i) $150,000,000 or (ii) the greatest amount which would not cause the Consolidated Leverage Ratio (determined as of the date of such purchase, redemption or acquisition after giving Pro Forma Effect to any Indebtedness incurred in connection therewith and after giving Pro Forma Effect to each other than Disqualified Equity Interests)Specified Transaction that has occurred since the first day of the most recently ended Measurement Period for which financial statements are available) to exceed 3.25 to 1.00.
Appears in 2 contracts
Sources: Credit Agreement (Fresh Del Monte Produce Inc), Credit Agreement (Fresh Del Monte Produce Inc)
Restricted Payments. Declare or makeThe Borrower shall not, directly or indirectlyand shall not permit its Subsidiaries to, make any Restricted PaymentPayments other than the following: (a) ratable distributions by Subsidiaries and joint ventures of the Borrower or its Subsidiaries, to the Borrower and/or to Subsidiaries of the Borrower and the other joint venturers therein, (b) ratable distributions paid only in common (non-preferential and non-redeemable) equity securities, (c) distributions in connection with stock option or incur other benefit plans for management and employees, (d) payment of management, marketing services, credit support and general and administrative fees and expenses in accordance with its governing documents and/or the other arrangements or agreements permitted by Section 6.13, and payment of or reimbursement for (or indemnification for) costs, fees and expenditures made or incurred for or on behalf of it or its Subsidiaries by any obligation Person in connection with providing such services, and (contingent or otherwisee) if and to do so, except that, so long as the extent that no Default shall have occurred and be continuing at the time of any action described below then exists or would result therefrom:
, payment of monthly, quarterly and special distributions in amount not to exceed (ai) each Subsidiary may make Restricted Payments the amount by which the Borrower’s cash on hand exceeds its current and anticipated needs for maintenance capital expenditures, operating expenses, debt service and a reasonable contingency reserve (as determined from time to any Person that owns Equity Interests time by the Borrower’s management in such Subsidiary, ratably according to their respective holdings accordance with the Borrower’s operating agreement) or (ii) after the occurrence of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interestsan IPO, and, with respect to its preferred Equity Intereststhe extent relevant, payable solely if greater than the amount set forth in additional Equity Interests clause (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymenti), the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount necessary to provide the Borrower’s post-IPO managing member, taking into account such managing member’s allocable portion of all Restricted Payments made pursuant any such distribution, and any master limited partnership formed for purposes of an IPO with any shortfall in such master limited partnership’s available cash to this clause (d) does not exceed $50,000,000 in fund any fiscal year of Holdings (periodic minimum distributions to such master limited partnership’s unitholders; it being understood acknowledged that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments borrowings under this Agreement to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)fund any permitted distribution.
Appears in 2 contracts
Sources: Term Loan Agreement (Enable Midstream Partners, LP), Term Loan Agreement (Oge Energy Corp.)
Restricted Payments. Declare The Borrower shall not, and shall not permit the Parent or makeany Subsidiary of the Borrower to, directly or indirectlyindirectly declare, make or pay any Restricted Payment; provided, 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:however
(a) each any Subsidiary may make Restricted Payments to any Person that 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;Borrower may declare and pay a Distribution to the Borrower, and
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares so long as there exists no Default or Event of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if Default immediately prior to before and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymenttransaction or payment,
(i) commencing April 30, 2000, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings Borrower may make any other an annual Restricted Payments, so long as the Payment in an aggregate amount of all not to exceed in any fiscal year, the difference between Excess Cash Flow for the preceding calendar year and the amount required by Section 2.05(a) hereof to repay the Obligations, provided that, no such Restricted Payments Payment may be made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant the Borrower until the Borrower has fully complied with Section 2.05(a) hereof with respect to clause (e) below, shall not count towards such $50,000,000);year,
(eii) the Borrower and the Parent may each make payments in kind on its Subordinated Debt (but only in kind payments and no cash payments),
(iii) so long as there has not been a REIT Conversion, the Borrower may annually make not more than two cash distributions to the Parent, who must use such cash distributions to make distributions to the Shareholders, each such distribution in an aggregate amount per taxable year equal to (A) the amount of gross income actually includible by the Shareholders on their Tax returns with respect to such taxable year solely as a result of the operations of the Parent, the Borrower and its Subsidiaries, multiplied by (B) the sum of the highest marginal Federal and highest marginal State income tax rates applicable to one or more of the Shareholders,
(iv) so long as there has not been a REIT Conversion, the Borrower may make one or more distributions with respect to any taxable year constituting Subordinated Debt to the Parent, who, to the extent such distribution is made by the Borrower may make one or more distributions with respect to any taxable year constituting Subordinated Debt to the Shareholders, each such distribution constituting Subordinated Debt not to exceed in the aggregate an amount necessary to enable the Parent to obtain the maximum possible deduction for dividends paid, as defined in Section 561 of the Code and further described in Section 857 of the Code for such year, taking into account the sum of all distributions previously paid to Shareholders in accordance with the terms of Section 8.08(b)(iii) above, provided that, in connection with any such distribution, the Parent shall take into consideration for such purpose the necessity of increasing the aggregate amounts distributed to reflect the fact that distributions in redemption of any preferred return on any class of stock will be treated as being made partly from earnings and profits and partly from capital,
(v) the Borrower may make Restricted Payments an annual distribution to Holdings so that Holdings Parent in an amount not to exceed $25,000 to reimburse the Parent for its miscellaneous expenses,
(vi) until September 1, 2003, the Parent may repurchase its Equity Interests from employees make (A) payments in connection kind only on the Parent Senior Notes (but only in kind payments and no cash payments), in accordance with the vesting terms of equity awardsthe Parent Senior Notes Documentation, and (B) payments in kind only on the Second Parent Issuance (but only in kind payments and no cash payments), in order accordance with the terms of the Second Parent Issuance Documentation,
(vii) the Parent may repay in its entirety the Bridge Debt, but only so long as the Parent uses the proceeds of (i) Debt issued in accordance with the terms of Section 8.02(c)(i) hereof to satisfy repay such Bridge Debt or (ii) equity issued in accordance with the related tax withholding obligations; terms of Section 8.11 hereof to repay such Bridge Debt, and
(fviii) Holdings the Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it repay seller debt permitted to be incurred in accordance with the proceeds received from terms of Section 8.02(h) hereof, so long as such repayments are in accordance with the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)terms thereof.
Appears in 2 contracts
Sources: Credit Agreement (Pinnacle Holdings Inc), Credit Agreement (Pinnacle Holdings Inc)
Restricted Payments. Declare or makeNo Credit Party shall, directly or indirectly, nor shall it permit any of its Subsidiaries to make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payments 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 may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings the Subsidiaries of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings the holders of their Equity Interests on a pro rata basis;
(b) so that Holdings long as no Event of Default shall have occurred and be continuing, the Borrower may make repurchases of Equity Interests or payments in respect thereof not exceeding $1,000,000 in the aggregate during any fiscal year to officers, employees, consultants or members of management of the General Partner, the Borrower or its Subsidiaries (or their respective estates, heirs, family members, spouses or former spouses) upon the termination, death or disability of such Person or in connection with the exercise of stock options or similar equity incentives pursuant to management incentive plans;
(c) so long as no Event of Default shall have occurred and be continuing, (i) if the Fixed Charge Coverage Ratio of the Borrower is at least 1.75 to 1.00, the Borrower may make cash distributions to the holders of its Equity Interests and may repurchase or buy back its Equity Interests from employees holders of its Equity Interests in an aggregate amount for all such cash distributions and repurchases and buybacks made in periods when the Fixed Charge Coverage Ratio of the Borrower is at least 1.75 to 1.00, not to exceed the sum of, without duplication (A) Available Cash for the preceding fiscal quarter plus (B) the Incremental Funds and (ii) if the Fixed Charge Coverage Ratio of the Borrower is less than 1.75 to 1.00, the Borrower may make cash distributions to the holders of its Equity Interests and may repurchase or buy back its Equity Interests from holders of its Equity Interests in an aggregate amount for all such cash distributions and repurchases and buybacks made in periods when the Fixed Charge Coverage Ratio of the Borrower is less than 1.75 to 1.00, not to exceed the sum of (A) $175,000,000 plus (B) the Incremental Funds;
(d) so long as no Event of Default shall have occurred and be continuing, the Borrower may make any Restricted Payment out of the net cash proceeds of a substantially concurrent (a) capital contribution (other than from a Subsidiary of the Borrower) to the equity capital of the Borrower or (b) sale (other than to a Subsidiary of the Borrower) of, Equity Interests of the Borrower, with a sale being deemed substantially concurrent if such Restricted Payment occurs not more than 120 days after such sale; provided, however, that the amount of any such net cash proceeds that are utilized for any such Restricted Payment pursuant to this Section 6.9(d) will, to the extent included therein, be excluded or deducted from the calculation of Incremental Funds for purposes of Section 6.9(c);
(e) so long as no Event of Default shall have occurred and be continuing, the Borrower may make any Restricted Payment consisting of cash payments in lieu of the issuance of fractional shares in connection with the vesting exercise of equity awardswarrants, in order to satisfy options or other securities convertible or exchangeable for Equity Interests of the related tax withholding obligationsBorrower; and
(f) Holdings so long as no Event of Default shall have occurred and be continuing, Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)make any Restricted Payment in an aggregate amount for all such Restricted Payments made pursuant to this Section 6.9(e) not to exceed $20,000,000.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Hi-Crush Partners LP)
Restricted Payments. Declare or makeEach Loan Party will not, directly or indirectlyand will not permit any of its Subsidiaries to, make any Restricted Payment; provided, or incur any obligation that so long as it is permitted by law,
(contingent or otherwisea) to do so, except that, so long as no Event of Default shall have occurred and be continuing or would result therefrom, Administrative Borrower may make distributions to former or current employees, officers, consultants or directors of Administrative Borrower (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Equity Interests of Administrative Borrower held by such Persons; provided, that the aggregate amount of such redemptions (other than redemptions made in connection with tax payments) made by Administrative Borrower during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness and purchase under clause e(ii) of this definition, does not exceed $2,500,000 in the aggregate,
(b) so long as no Event of Default shall have occurred and be continuing or would result therefrom, Administrative Borrower may make distributions to former employees, officers, consultants or directors of Administrative Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Administrative Borrower on account of repurchases of the Equity Interests of Administrative Borrower held by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire Equity Interests of Administrative Borrower and the amount of Indebtedness forgiven does not exceed $1,000,000,
(c) [Intentionally omitted.]
(d) Subsidiaries of a Loan Party may make distributions to a Loan Party,
(e) (i) repurchase Equity Interests from stockholders owning less than 1% of the outstanding equity securities for aggregate consideration of less than $1,000,000 in any twelve month period and $200,000 in each instance and (ii) make other purchases of Equity Interests in aggregate with distributions under clause (a) of this definition and Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness not greater than $2,500,000 per Fiscal Year, provided, that no Event of Default has occurred and is continuing (both before and after giving effect thereto), at the time of any action described below the repurchase,
(f) each Loan Party may declare and make Restricted Payments payable in the Qualified Equity Interests of such Loan Party, provided, that the issuance of such Qualified Equity Interests does not otherwise violate the terms of this Agreement and no Event of Default has occurred and is continuing at the time of making such Restricted Payments or would result from the making of such Restricted Payments,
(g) so long as no Event of Default shall have occurred and be continuing or would result therefrom:, a Borrower may distribute securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, in the ordinary course of business consistent with past practice, employment arrangements, stock options, equity compensation awards, and other benefit plans to employees, officers, consultants or directors, or
(ah) each Subsidiary may make Restricted Payments to So long as no Event of Default has occurred and is continuing, any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings Borrower may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount redemption of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Qualified Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the cash proceeds received from the a substantially concurrent issue issuance of new shares of its Equity Interests (other than Disqualified Qualified Equity Interests).
Appears in 1 contract
Sources: Credit Agreement (Neophotonics Corp)
Restricted Payments. Declare or The Applicant will not (i) declare, make, or pay any distribution of any kind whatsoever or dividend (other than dividends payable solely in common stock (or equivalent interests) of the Person making such 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 any Applicant or Subsidiary, whether now or hereafter outstanding; (ii) make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Applicant or Subsidiary; or (iii) except in connection with intercompany borrowings in the ordinary course of Applicant’s business, which in any event shall not exceed $750,000,000 at any time, make or pay any contribution or loan of any kind whatsoever to any Subsidiary or Affiliate of the Applicant (collectively, “Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments”), except that, :
(a) so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary , the Applicant may make Restricted Payments in an aggregate amount not to exceed $40,000,000 in any Person that 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 madeFiscal Year;
(b) Holdings and each Subsidiary the Applicant may declare and pay dividends with respect to make Restricted Payments from the Applicant’s or its common Equity Interests payable solely Subsidiaries’ CMOB portfolio not in additional shares excess of its common Equity Interests, $60,000,000 in any calendar year; and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make in addition to any other Restricted Payments if immediately prior to permitted by clauses (a) and after giving effect (including giving effect on a pro forma basisb) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Paymentsabove, so long as no principal amount is outstanding under any Loan, the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower Applicant may make Restricted Payments in an aggregate amount not to Holdings so that Holdings may repurchase its Equity Interests from employees exceed the aggregate reduction in connection with the vesting sum of equity awards, the aggregate face amount of outstanding Letters of Credit and available amount of the Loans in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)each Fiscal Year.
Appears in 1 contract
Sources: Credit Agreement (ING U.S., Inc.)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except that:
(a) Each Subsidiary may make Restricted Payments to the Borrower and to Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly-Owned Subsidiary, to the Borrower and any Subsidiary and to each other owner of Equity Interests of such Subsidiary) based on their relative ownership interests;
(b) Borrower and each Subsidiary may declare and make dividend payments or incur any obligation other distributions payable solely in Equity Interests (contingent or otherwiseother than Disqualified Capital Stock) of such Person and, in the case of a Subsidiary, based on the proportionate ownership of such Subsidiary;
(c) [Reserved];
(d) to do sothe extent constituting Restricted Payments, except that, the Borrower and its Subsidiaries may enter into transactions expressly permitted by Section 7.04;
(e) so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiaryshall be caused thereby, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings (i) in an aggregate amount not to exceed $6,000,000 in any fiscal year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses, (ii) for so long as Holdings and Borrower are members of the same affiliated group of corporations within the meaning of section 1504 of the Code and the Treasury Regulations promulgated thereunder (or any similar provision of state or local income tax law), to the extent necessary to permit Holdings or a Subsidiary to discharge the consolidated or similar Tax liabilities of Holdings and any of its Subsidiaries so long as Holdings or the paying Subsidiary applies the amount of any such payment for such purpose and provided that the amount of such payment for any taxable period shall not exceed the amount of income taxes that the Borrower and/or its Subsidiaries would have paid for such taxable period on a stand alone basis, (iii) in an aggregate amount required for Holdings may repurchase to pay franchise taxes and other fees required to maintain its legal existence, (iv) in an aggregate amount sufficient to pay reasonable and customary costs and expenses incident to a public offering (whether or not consummated) of the Equity Interests from employees in connection of Holdings to the extent that the proceeds therefrom are intended to be contributed to the Borrower and (v) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the vesting closing of equity awardssuch Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary Guarantor (or a Subsidiary to the extent otherwise allowed by Section 7.02) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or a Subsidiary Guarantor (or a Subsidiary to the extent otherwise allowed by Section 7.02) in order to satisfy consummate such Permitted Acquisition, in each case, in accordance with the related tax withholding obligationsrequirements of Section 6.13;
(f) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make Restricted Payments with respect to the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or any Subsidiary of Holdings held by any past, present or future employee, director, officer or consultant of Holdings (or any of its Subsidiaries) pursuant to any equity subscription agreement, stock option agreement or similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $10,000,000 in any twelve-month period;
(g) [Reserved];
(h) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, to the extent the Lease Adjusted Leverage Ratio calculated on a Pro forma Basis at the time of, and after giving effect to, the making of such Restricted Payments, is less than or equal to 3.25:1.00 and, after giving effect to the applicable Restricted Payment(s), the aggregate Commitments exceed the sum of the Outstanding Amount of all Revolving Loans, the Outstanding Amount of all L/C Obligations and the Outstanding Amount of all Swing Line Loans by no less than $75,000,000, the Borrower may make additional Restricted Payments to Holdings; and
(fi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Restricted Payments to Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)in an amount not to exceed $15,000,000.
Appears in 1 contract
Sources: Credit Agreement (Carters Inc)
Restricted Payments. Declare or makepay any dividend (other than dividends payable solely in common stock of the Person making such 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 any Group Member, 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 Subsidiary (collectively, “Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments”), except that:
(a) (i) any Subsidiary may make Restricted Payments to the Borrower or any Subsidiary Guarantor and (ii) any Subsidiary may make Restricted Payments in a proportionate manner to the Borrower (or a Subsidiary Guarantor, as applicable) and the other holders of such Subsidiary’s Capital Stock in respect of such holders’ proportionate ownership of such Subsidiary;
(b) so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary , the Borrower may make Restricted Payments to purchase its common stock or common stock options from present or former officers or employees of any Person Group Member upon the death, disability or termination of employment of such officer or employee, provided that owns Equity Interests in such Subsidiary, ratably according to their respective holdings the aggregate amount of the type of Equity Interest in respect of which such Restricted Payment is being made;
payments under this clause (b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interestsafter the date hereof shall not exceed $2,500,000;
(c) Holdings ▇▇▇▇▇ ▇▇▇▇▇▇▇ Enterprises, LLC and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Enterprises Inc. (and, to the extent required, the EPE Holding Corporation) may make any other Restricted Payments if immediately prior pay dividends to and after giving effect (including giving the Promenade Trust pursuant to the applicable Elvis Operating Company Charter Documents, as in effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterRestatement Date;
(d) Holdings may make purchases by any other Restricted PaymentsGroup Member of the Capital Stock of any Group Member or Permitted Joint Venture from any Person that is not a Group Member or Permitted Joint Venture in an aggregate amount not to exceed $10,000,000 from and after the Restatement Date (provided that (i) the Borrower shall be in compliance with the financial covenants set forth in Section 7.1 on a pro forma basis after giving effect to any such purchase (as certified by a Responsible Officer of the Borrower), so long as (ii) the amount paid by the Borrower and its Subsidiaries in respect of any “put” or similar obligation arising in connection with any individual Permitted Acquisition or Permitted Joint Venture shall not exceed 30% of the aggregate consideration paid by the Borrower and its Subsidiaries for such Permitted Acquisition or Permitted Joint Venture (as certified by a Responsible Officer of the Borrower), (iii) the amount paid by the Borrower and its Subsidiaries from and after the Restatement Date in connection with the exercise of any “call” or similar right by any of them shall not exceed $5,000,000 in the aggregate and (iv) the dollar caps specified above shall be reduced by the dollar amount of all Restricted Payments any Investments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000Section 7.8(k));
(e) the Borrower GOAT Operating Company may make Restricted Payments pay dividends to Holdings so that Holdings may repurchase its Equity Interests from employees the ▇▇▇▇▇▇▇▇ ▇▇▇ Family Trust pursuant to the GOAT Operating Agreement, as in connection with effect on the vesting of equity awardsRestatement Date;
(f) Investments permitted under Section 7.8(l) or Section 7.8(m), in order either case, to satisfy the related tax withholding obligationsextent that such Investments would constitute Restricted Payments; and
(fg) Holdings the Borrower may purchasepay dividends to the Promenade Trust pursuant to the ▇▇▇▇▇▇▇ Preferred Equity, redeem or otherwise acquire Equity Interests issued by it with as in effect on the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Restatement Date.
Appears in 1 contract
Sources: Credit Agreement (CKX, Inc.)
Restricted Payments. Declare Each of Parent and Borrower shall not, and shall not permit any other member of the Consolidated Group to, 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 therefromexcept:
(a) each Subsidiary may make Restricted Payments to Borrower and any other Person that 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) Holdings and each Subsidiary member of the Consolidated Group may declare and pay dividends with respect to its make dividend payments or other distributions, and may make other Restricted Payments, in each case payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests Person or in shares of its common Equity InterestsParent;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as no Default shall have occurred and be continuing at the aggregate amount time thereof or would result therefrom, each member of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Consolidated Group may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent an issue of new shares of its common stock or other Equity Interests within ninety (90) days before such Restricted Payment;
(d) Borrower may make Restricted Payments to Parent and, to the extent corresponding distributions to other holders of its Equity Interests are required by its Organization Documents, to such other holders of Equity Interests, in amounts sufficient to permit Parent to make, and Parent may make, Restricted Payments, for any twelve (12) month period, not to exceed an amount equal to the greater of: (i)(A) ninety-five percent (95%) multiplied by (B) Funds From Operations for such period and (ii) the aggregate amount of Restricted Payments required to be made by Parent in order for it to (A) maintain its REIT status and (B) avoid the payment of federal or state income or excise tax; provided that to the extent a Default is then-existing or would result from the making of such Restricted Payment by Parent (other than Disqualified a Default specified in Sections 10.01(f) or 10.01(g) or a Default that has resulted in Administrative Agent exercising its remedies under Section 10.02(b), in which case no Restricted Payments otherwise permitted under this clause (d) may be made), Borrower may only make Restricted Payments to Parent and, to the extent corresponding distributions to other holders of its Equity Interests are required by its Organization Documents, to such other holders of Equity Interests), in amounts sufficient to permit Parent to make, and Parent may make, Restricted Payments in the minimum amount required in order for Parent to (A) maintain its REIT status and (B) avoid the payment of federal or state income or excise tax;
(e) any member of the Consolidated Group may make non-cash Restricted Payments in connection with employee, trustee and director stock option plans or similar employee, trustee and director incentive arrangements; and
(f) so long as no Default shall have occurred and be continuing at the time thereof or would result therefrom, with respect to an equity award granted pursuant to an equity incentive compensation plan to any current or former director, employee, independent contractor or other service provider, in each case, of any of Parent, Borrower or Subsidiary thereof, (i) the withholding of Equity Interests to satisfy any applicable withholding Tax obligations and/or exercise or purchase price, (ii) the repurchase or acquisition by Parent or Borrower of such entity’s Equity Interests or (iii) the grant, award, modification or payment of any such equity award.
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 Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
: (a) each Subsidiary may make Restricted Payments to Borrower and to wholly owned Subsidiary Guarantors (and, in the case of a Restricted Payment by a non wholly owned Subsidiary, to Borrower and any Person that owns Subsidiary Guarantor and to each other owner of Equity Interests in of such Subsidiary, ratably according to Subsidiary on a pro rata basis based on their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
relative ownership interests); (b) Holdings Borrower and each Subsidiary may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in (x) common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such Person or (y) preferred Equity Interests equity of Borrower that is not redeemable for cash in connection with a “poison pill” so long as no Change of Control could reasonably be expected to occur as a result of the issuance of any such preferred stock or in shares conversion of its common Equity Interests;
any thereof; (c) Holdings may make any other Restricted Payments if immediately prior to Borrower and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Subsidiary may purchase, redeem or otherwise acquire shares of its (and, solely with respect to Borrower, its Subsidiaries’) common Equity Interests issued by it or warrants or options to acquire any such common Equity Interests with the proceeds received from the substantially concurrent issue of new shares of its common Equity Interests Interests; and (d) the Foreign Subsidiaries (other than Disqualified Exempt Foreign Subsidiaries) may purchase Equity Interests)Interests of its direct Foreign Subsidiaries from third parties that own minority Equity Interests in such direct Foreign Subsidiaries for cash, so long as the aggregate consideration paid for all such purchases by all such Foreign Subsidiaries shall not exceed $5,750,000.00 during the term of this Agreement.
(j) Section 7.09 of the Credit Agreement is hereby amended to read as follows:
Appears in 1 contract
Sources: Credit Agreement (Ciber Inc)
Restricted Payments. Declare The Company 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, or incur any obligation however, that the Company may declare and make Restricted Payments in cash (contingent or otherwiseincluding, without limitation, Restricted Payments to Affiliates), subject to the satisfaction of each of the following conditions on the date of such Restricted Payment and after giving effect thereto:
(i) to do so, except that, so long as no Default shall have occurred and be continuing (except Restricted Payments may be made to Holdings in an aggregate amount up to $500,000 in any single fiscal year in order to allow Holdings to pay dividends on its Series AA Preferred Stock, notwithstanding that a Default under clause (c) or (d) of Article VIII exists, so long as no other Default shall have occurred and be continuing); and
(ii) if at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect thereto (including giving effect on a pro forma basis) and to any concurrent incurrence of Indebtedness) the Total Debt Ratio is greater than 5.00 to 1, then the aggregate amount of such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any together with all other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does ii), shall not exceed $50,000,000 250,000,000. Notwithstanding the foregoing, (w) the Company may make Restricted Payments consisting of the retirement of employee stock options and other Equity Rights upon the death, retirement or termination of employment of officers and employees in an aggregate amount in Credit Agreement any fiscal year not exceeding $3,000,000, so long as at the time thereof and after giving effect thereto, no Default shall have occurred and be continuing, (x) the Company may make payments in respect of interest on the Mirror Loan Indebtedness and to enable Holdings (it being understood to make scheduled payments of interest on the Senior Notes, provided that any “net down payments” made pursuant to the aggregate of all such payments under this clause (ex) below, in any single calendar year shall not count towards such exceed $50,000,000);
8,265,625, (ey) the Borrower Company may enter into Equity Hedging Arrangements, so long as the aggregate maximum contingent or potential liability thereunder shall not on any date exceed $12,000,000 minus the aggregate amount in fact paid by the Company under all Equity Hedging Arrangements during the period commencing on the date hereof and ending on such date and (z) the Company may make Restricted Payments to enable Holdings to make payments in respect of Qualified Holdings Obligations. Nothing herein shall be deemed to prohibit the payment of any dividend or distribution by any Subsidiary of the Company so that Holdings may repurchase its Equity Interests from employees in connection with long as such dividends or distributions are declared and paid ratably to the vesting shareholders, partners and other equity holders of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)such Subsidiary.
Appears in 1 contract
Restricted Payments. Declare or makeThe Company will not, and will not permit any of its Wholly-Owned Subsidiaries to, directly or indirectlyindirectly declare, order, pay or make any Restricted PaymentPayment or set aside any sum or property therefore except as follows:
(i) the Subsidiaries of the Company may (A) pay dividends and make distributions to the Company and (B) repay indebtedness owed to the Company;
(ii) the Subsidiaries of the Company may make distributions to the Company to enable the Company to pay as and when due amounts owed from time to time hereunder and under the other Lease/Purchase Documents; and
(iii) the Company may repurchase shares of its Capital Stock and/or pay dividends to Holdings, provided (A) no Default 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 such payment or would result therefrom:
, (aB) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests the Company and its Subsidiaries will be in such Subsidiary, ratably according to their respective holdings pro forma compliance with the financial covenants set forth in Section 20 of this Agreement as of the type of Equity Interest in respect of most recently ended period for which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect financial statements were delivered pursuant to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity InterestsSection 21(a) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to this Agreement on a pro forma basis both before and after giving effect (including giving effect on a pro forma basis) to any Restricted Payments made hereunder as if such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing Payments were made on the Effective Date through September 30, 2023last day of such period, (yC) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does hereunder from and after the Commencement Date shall not exceed (i) $50,000,000 10,000,000 in the aggregate during any fiscal year, and (ii) $20,000,000 in the aggregate during the term of this Agreement, (D) in the event that the aggregate amount of the Restricted Payments made hereunder shall exceed $5,000,000 in any fiscal year, the aggregate amount of Capital Expenditures permitted under this Agreement in such fiscal year shall be reduced by the amount of Holdings such excess, and (it being understood that any “net down payments” made E) the Coffeehouse Level EBITDA Margin for the most recently completed Reference Period for which financial statements have been delivered pursuant to clause (eSection 21(a)(ii) below, shall not count towards of this Agreement must be 15% or greater of Coffeehouse Level Sales for such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Reference Period.
Appears in 1 contract
Sources: Lease and License Financing and Purchase Option Agreement (Caribou Coffee Company, Inc.)
Restricted Payments. Declare The Company will not issue any Disqualified Stock. The Company will not, nor will it permit any Subsidiary to, declare or make, directly or indirectly, make 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 therefromexcept:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Company may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common stock or in rights or options to acquire such common stock;
(b) Subsidiaries may declare and make Restricted Payments to the Company and to Subsidiaries of the Company (including, without limitation, the Luvata Transactions that constitute Restricted Payments) (provided, that Restricted Payments made by a non-Wholly-owned Subsidiary must be made on a pro rata basis (or more favorable basis from the perspective of the Company or the Subsidiary which is the parent of such Subsidiary) based on its ownership interests in such non-Wholly-owned Subsidiary);
(c) Restricted Payments may be made to purchase or redeem the Equity InterestsInterests of the Company (including related stock appreciation rights or similar securities) held by present or former directors, andconsultants, officers or employees of the Company or any Subsidiaries upon any such Person’s death, disability, retirement or termination of employment or under the terms of any benefit plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any calendar year $2,500,000 (with respect unused amounts in any period permitted to its preferred Equity Interestsbe carried over to succeeding periods until used in full; provided, payable solely that the total amount of such purchases or redemptions under this clause (c) in additional any calendar year shall not exceed $5,000,000) plus (i) the amount of net proceeds contributed to the Company that were received by the Company during such calendar year from sales of the Company’s Equity Interests (other than but not including any Disqualified Equity InterestsStock) to directors, consultants, officers or employees of the Company or any Subsidiaries in connection with permitted compensation and incentive arrangements, and (ii) the amount of net proceeds of any key-man life insurance policies received during such preferred calendar year, which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Debt owing to the Company or any Subsidiaries from present or former directors, consultants, officers or employees in connection with a repurchase of Equity Interests of the Company will not be deemed to constitute a Restricted Payment for purposes of this Section 10.10;
(d) non-cash repurchases of Equity Interests deemed to occur upon the exercise or in shares settlement of its common stock options, stock appreciation rights, restricted stock units, warrants or other convertible or exchangeable securities or other Equity Interests if such Equity Interests represents a portion of the exercise price of, or withholding obligation with respect to, such options, stock appreciation rights, restricted stock units, warrants or other convertible or exchangeable securities or other Equity Interests;
(ce) Holdings Restricted Payments 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 Equity Interests of any such Person;
(f) withholding tax payments made on behalf of present or former directors, consultants, officers or employees in connection with the exercise by such Persons of stock options or other rights to purchase Equity Interests or the vesting of restricted Equity Interests (including any repurchase of restricted Equity Interests representing the holder’s tax liability in connection with the vesting thereof);
(g) the Company and its Subsidiaries may make any other Restricted Payments if Payment so long as (i) no Default or Event of Default has occurred and is continuing immediately prior to and after making such Restricted Payment or would arise upon giving effect (including giving effect on a pro forma basiseffect) to any such Restricted Payment, the Consolidated Leverage Ratio is thereto and (xii) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to under this clause (dg) does during any Fiscal Year shall not exceed exceed, in the aggregate, the following amounts: If the Leverage Ratio Aggregate Amount of Restricted Payments for such Fiscal Year Is greater than or equal to 3.00 to 1.00 $50,000,000 20,000,000 Is less than 3.00 to 1.00 No Limit In determining whether Restricted Payments may be made at any time, the Leverage Ratio shall be determined as of the most recently ended Fiscal Quarter of the Company (after giving pro forma effect to such Restricted Payments). Notwithstanding the above, if the Leverage Ratio is greater than or equal to 3.00 to 1.00 as of the end of any Fiscal Year and the aggregate amount of Restricted Payments exceeded the limit set forth above for a Fiscal Year as to which the Leverage Ratio is greater than or equal to 3.00 to 1.00, then the amount of permitted Restricted Payments for the subsequent Fiscal Year (but not for any Fiscal Year after such subsequent Fiscal Year) shall be reduced by such excess, provided that such amount shall not be reduced to less than $1,000,000. Notwithstanding anything in this Agreement to the contrary, the foregoing provisions of this Section 10.10 will not prohibit any fiscal year Restricted Payment within 60 days after the date of Holdings declaration thereof or the giving of notice with respect thereto, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment would have complied with the provisions of this Section 10.10 (it being understood that any “net down payments” such Restricted Payment shall be deemed to have been made pursuant to clause (e) below, shall not count towards on the date of declaration or notice for purposes of such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interestsprovision).
Appears in 1 contract
Sources: Amended and Restated Note Purchase and Private Shelf Agreement (Modine Manufacturing Co)
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment if at the time of making such Restricted Payment, and after giving pro forma effect thereto (including any Indebtedness incurred in connection therewith), no Default shall have occurred and be continuing or incur would result therefrom and the Consolidated Leverage Ratio is equal to or greater than 1.50 to 1.00 (and no such Restricted Payment shall at any obligation later time constitute usage of any of the exceptions contained in (contingent or otherwisea) to do sothrough (e) below regardless of any later change in the Consolidated Leverage Ratio), 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 may make Restricted Payments to a Borrower, any Subsidiary Guarantor and any other Person that 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) Holdings the Company and each Subsidiary may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings the Company and its Subsidiaries may make purchase Equity Interest of any other Restricted Payments if immediately prior Subsidiary of the Company owned by professional engineers in connection with licensing requirements in an aggregate amount not to and after giving effect (including giving effect on a pro forma basis) to exceed $500,000 in any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterfiscal year;
(d) Holdings the Company may purchase Equity Interest of the Company and any warrants or other rights with respect to Equity Interest of the Company from its employees, officers and directors by net exercise, pursuant to the terms of any employee stock option, restricted stock or incentive stock plan;
(e) without limitation of or by any other clause in this Section 7.07, the Company and each Subsidiary may make any other Restricted Payments, so long as the Payments in an aggregate amount of all Restricted Payments made pursuant not to this clause (d) does not exceed $50,000,000 150,000,000 in any fiscal year of Holdings the Company (it being understood that without carryover to any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000ensuing fiscal year);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings without limitation of or by any other clause in this Section 7.07, the Company and each Subsidiary may purchasemake other Restricted Payments in an aggregate amount after the Closing Date not to exceed the sum, redeem determined as of the date of such Restricted Payment, of (i) 50% of the cumulative amount of Net Income for the period commencing on first day of the fiscal quarter containing the Closing Date and ending on the last day of the most recent fiscal quarter for which financial statements have been delivered, or otherwise acquire were required to be delivered, pursuant to Section 6.01(a) or Section 6.01(b); plus (ii) 100% of the Net Cash Proceeds received after the Closing Date and prior to the date of such Restricted Payment by the Company from the issuance of common Equity Interests issued by it with of the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Company to third parties.
Appears in 1 contract
Sources: Credit Agreement (Urs Corp /New/)
Restricted Payments. Declare Make any Restricted Payment, other than the following:
(a) [Reserved].
(b) Restricted Payments, which may be made only during such times as no Default then exists or makewould result therefrom and only from, and to the extent of, the remaining Excess Cash Flow received by Borrowers for the Fiscal Quarter then most recently ended after deducting the amount of such Excess Cash Flow required to be paid on the Loan in accordance with Section 2.03(b) of this Agreement or this Section 7.17(b), made in the form of one or more dividends or distributions from Borrowers (or any Borrower) to Sole Member, from Sole Member to Sole Member Parent and from Sole Member Parent to Parent, which dividends and distributions from Borrowers (or any Borrower) to Sole Member, from Sole Member to Sole Member Parent and from Sole Member Parent to Parent shall occur substantially concurrently with one another and may be used only for one or more of the following purposes of Parent and shall not exceed in the aggregate the amount specified below:
(i) for the purpose of allowing CBL & Associates Properties, Inc. and its direct and indirect Subsidiaries to comply with the minimum requirements for REITs under the Code as it relates to the direct or indirect ownership of the Collateral; or
(ii) for any other purpose permitted under and consistent with applicable Law and the Organization Documents of the Loan Party making such Restricted Payment; provided that, in each case for both clause (i) and clause (ii) above, Borrowers’ Representative shall have, at least ten Business Days prior to the proposed date of the making of any of such dividends or distributions from Borrowers (or any Borrower) to Sole Member, from Sole Member to Sole Member Parent and/or from Sole Member Parent to Parent in accordance with this Section 7.17(b), delivered to Administrative Agent a certification of the Excess Cash Flow of Borrowers from the Projects for the Fiscal Quarter then most recently ended and the aggregate amount of such dividends and distributions then proposed to be made by Borrowers (or any Borrower) after giving effect to any mandatory prepayment of the Loan from such Excess Cash Flow required to be paid in accordance with Section 2.03(b), and thereafter, and if (but only if) at such time the Debt Yield on the Projects as determined by Administrative Agent is less than 15.5% per annum, Lenders (in their sole discretion) will have the right, promptly upon notice given by Administrative Agent or Lenders to Borrowers, to cause up to fifty percent (50%) of the aggregate amount of such Restricted Payment proposed to be made by Borrowers (or any Borrower) under clause (ii) preceding instead to be applied as a prepayment of the principal amount of the Loan (without the payment of any Minimum Earnings Amount). Any portion of the remaining fifty percent (50%) of the Excess Cash Flow available to be used to make a Restricted Payment that is not applied to any such prepayment of principal of the Loan may be distributed by Borrowers (or any Borrower) to Sole Member, by Sole Member to Sole Member Parent and by Sole Member Parent to Parent as provided in this Section 7.17(b) above. For the avoidance of doubt, if and to the extent that any mandatory prepayment of the principal amount of the Loan could have been elected to be required by Administrative Agent or any Lender in accordance with Section 2.03(b)(iii) hereof but is not so elected to be required by Administrative Agent or any Lender, then the amount of the Excess Cash Flow not so elected to be required to be paid as a prepayment thereunder may be used to make a Credit Agreement dated as of March 27, 2026, by and among Borrowers, CBL Outparcel HoldCo, LLC, CBL Outparcel HoldCo Parent, LLC, CBL & Associates HoldCo II, LLC, CBL & Associates Limited Partnership, CLMG Corp., as Administrative Agent, ▇▇▇▇ Bank USA, as Initial Lender, and the other Lenders party hereto Restricted Payment in accordance with this Section 7.17 if and to the extent permitted under this Section 7.17.
(c) In addition to Parent making Restricted Payments from Excess Cash Flow in accordance with Section 7.17(b) above, Parent may make Restricted Payments, from time to time in accordance with applicable Law, from cash or other assets which are not, directly or indirectly, received from Sole Member Parent, Sole Member or 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;Borrower.
(d) Holdings Sole Member and Sole Member Parent may make any other Restricted Payments, so long from time to time in accordance with applicable Law, as permitted by and in compliance with Section 7.17 of the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Affiliate Credit Agreement.
Appears in 1 contract
Restricted Payments. Declare (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, declare or makemake any Restricted Payment on or after the Second Amendment and Restatement Date, directly except that:
(i) any Restricted Subsidiary may declare and make Restricted Payments to the Borrower or indirectlyany other Restricted Subsidiary, but in the case of a Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, such Restricted Payment is made on a pro rata basis among equity holders holding the same series of Equity Interests in respect of which such Restricted Payment was made, subject to any tax-related adjustment as set forth in its charter or similar documents or agreements binding on such Restricted Subsidiary;
(1) the Borrower may purchase, redeem or otherwise acquire or retire for value any of its Equity Interests held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates), upon death, disability, retirement, severance or termination of employment in an amount not to exceed $2,000,000 in any Fiscal Year (with unused amounts in such Fiscal Year permitted to be carried over into succeeding Fiscal Years); and (2) the Borrower may repurchase any of its Equity Interests deemed to occur upon cashless exercise of stock options or warrants held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates) if such Equity Interests represent a portion of the exercise price, or withholding taxes payable in connection with the exercise, of such options or warrants;
(iii) the Borrower may, in connection with the payment of a dividend on its shares of common stock that is payable in additional shares of such common stock, pay cash in lieu of delivering fractional shares of such common stock;
(iv) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed, together with the aggregate amount of prepayments of Junior Debt made pursuant to Section 7.12(i)(I), the greater of (x) $150,000,000 and (y) 4.00% of Consolidated Total Assets from or after the Second Amendment and Restatement Date;
(v) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent issuances of its Qualified Equity Interests; 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;
(vi) the Borrower and the Restricted Subsidiaries may make Restricted Payments to consummate the Transactions;
(vii) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (x) such payment would have complied with the provisions of this Agreement and (y) no Default occurred and was continuing;
(viii) the payment of dividends in an amount not to exceed $30,000,000 in any Fiscal Year; provided that, to the extent that the aggregate amount of dividends in any Fiscal Year made pursuant to this Section 7.07(a)(viii) is less than $30,000,000, 100% of the amount of such difference may be carried forward and used to make dividends in the immediately succeeding Fiscal Year (but not any other years) with such amount being carried forward to be applied before the amount permitted by this Section 7.07(a)(viii) for such immediately succeeding Fiscal Year is applied; and
(ix) if the Available Amount Conditions have been met, additional Restricted Payments may be made in an amount up to the Available Amount (determined, with respect to each such Restricted Payment made in reliance on this clause (ix), solely as of the date it is made); provided that Restricted Payments may be declared and made pursuant to clause (ii), (iii), (iv), (viii) or (ix) only if at the time of, and after giving effect to, the 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 may make Restricted Payments to any Person that 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;continuing.
(b) Holdings The Borrower will not, and each will not permit any Restricted Subsidiary may declare and pay dividends with respect to, furnish any funds to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any Investment in an Unrestricted Subsidiary or other Restricted Payments if immediately prior Person for purposes of enabling it to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments Payment that could not be made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) directly by the Borrower may make or a Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees Subsidiary in connection accordance with the vesting provisions of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)this Section.
Appears in 1 contract
Restricted Payments. Declare (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, declare or makemake any Restricted Payment on or after the Third Amendment and Restatement Effective Date, directly except that:
(i) any Restricted Subsidiary may declare and make Restricted Payments to the Borrower or indirectlyany other Restricted Subsidiary, but in the case of a Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, such Restricted Payment is made on a pro rata basis among equity holders holding the same series of Equity Interests in respect of which such Restricted Payment was made, subject to any tax-related adjustment as set forth in its charter or similar documents or agreements binding on such Restricted Subsidiary;
(1) the Borrower may purchase, redeem or otherwise acquire or retire for value any of its Equity Interests held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates), upon death, disability, retirement, severance or termination of employment in an amount not to exceed $2,000,000 in any Fiscal Year (with unused amounts in such Fiscal Year permitted to be carried over into succeeding Fiscal Years); and (2) the Borrower may repurchase any of its Equity Interests deemed to occur upon cashless exercise of stock options or warrants held by officers, directors or employees or former officers, directors or employees (or their estates or beneficiaries under their estates) if such Equity Interests represent a portion of the exercise price, or withholding taxes payable in connection with the exercise, of such options or warrants;
(iii) the Borrower may, in connection with the payment of a dividend on its shares of common stock that is payable in additional shares of such common stock, pay cash in lieu of delivering fractional shares of such common stock;
(iv) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed, together with the aggregate amount of prepayments of Junior Debt made pursuant to Section 7.12(i)(I), the greater of (x) $150,000,000 and (y) 4.00% of Consolidated Total Assets from or after the Third Amendment and Restatement Effective Date;
(v) the Borrower may redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent issuances of its Qualified Equity Interests; 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;
(vi) Restricted Payments to consummate the Transactions;
(vii) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration (x) such payment would have complied with the provisions of this Agreement and (y) no Default occurred and was continuing;
(viii) the payment of dividends in an amount not to exceed $30,000,000 in any Fiscal Year; provided that, to the extent that the aggregate amount of dividends in any Fiscal Year made pursuant to this Section 7.07(a)(viii) is less than $30,000,000, 100% of the amount of such difference may be carried forward and used to make dividends in the immediately succeeding Fiscal Year (but not any other years) with such amount being carried forward to be applied before the amount permitted by this Section 7.07(a)(viii) for such immediately succeeding Fiscal Year is applied; and
(ix) if the Available Amount Conditions have been met, additional Restricted Payments may be made in an amount up to the Available Amount (determined, with respect to each such Restricted Payment made in reliance on this clause (ix), solely as of the date it is made); provided that Restricted Payments may be declared and made pursuant to clause (ii), (iii), (iv), (viii) or (ix) only if at the time of, and after giving effect to, the 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 may make Restricted Payments to any Person that 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;continuing.
(b) Holdings The Borrower will not, and each will not permit any Restricted Subsidiary may declare and pay dividends with respect to, furnish any funds to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any Investment in an Unrestricted Subsidiary or other Restricted Payments if immediately prior Person for purposes of enabling it to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments Payment that could not be made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) directly by the Borrower may make or a Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees Subsidiary in connection accordance with the vesting provisions of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)this Section.
Appears in 1 contract
Restricted Payments. Declare Not, and not permit any other Loan Party to, (a) make any distribution to any holders of its Capital Securities, (b) purchase or makeredeem any of its Capital Securities, directly (c) except as provided in Section 11.7 hereof, pay any management fees or indirectlysimilar fees to any of its equityholders or any Affiliate thereof, (d) make any Restricted Paymentredemption, prepayment, defeasance, repurchase or incur any obligation other payment in respect of any Subordinated Debt or (contingent or otherwisee) to do so, except thatset aside funds for any of the foregoing. Notwithstanding the foregoing, so long as no Default shall have occurred such Loan Party is otherwise in compliance with the provisions of this Agreement and be continuing at the time of any action financial covenants contained herein, and immediately after giving effect to the transactions described below is in pro forma compliance with such financial covenants, (i) any Subsidiary of Borrower may pay dividends or make other distributions to Borrower or to a Wholly-Owned Subsidiary; and (ii) so long as no Event of Default or Unmatured Event of Default exists or would result therefrom:
, ▇▇▇▇▇▇▇▇ may (aA) each Subsidiary may pursuant to the Dividend Program, make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect or other distributions to its common Equity Interests payable solely shareholders in additional shares an aggregate amount not to exceed $20,000,000 in the Fiscal Quarter ending ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) make dividends or other distributions to its shareholders in an amount not to exceed the lesser of (I) $1,700,000 and (II) $0.50 per share of its common Equity Interestsstock on December 16, and2005, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity InterestsC) of such preferred Equity Interests or in shares make dividends of its common Equity Interests;
own stock, including cash payments for fractional shares and (cD) Holdings redeem its Capital Securities and (iii) ▇▇▇▇▇▇▇▇ may make any other Restricted Payments if immediately prior dividends to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, directors of ▇▇▇▇▇▇▇▇ so long as the such amounts have been properly accrued pursuant to ▇▇▇▇▇▇▇▇'▇ Directors Deferred Stock Plan, in an aggregate amount of all Restricted Payments made pursuant not to this clause (d) does not exceed $50,000,000 in any fiscal year 2,000,000 during the term of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);this Agreement.
(eu) Section 11.7 of the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with Credit Agreement is hereby amended by deleting the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by reference "Section 11.4(e)(ii)(d)" therein and replacing it with the proceeds received from reference "Sections 11.4(ii) and (iii)".
(v) Section 11.14.1 of the substantially concurrent issue of new shares of Credit Agreement is hereby amended by deleting such section in its Equity Interests (other than Disqualified Equity Interests).entirety and replacing it as follows:
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, return any capital to its stockholders or incur make any obligation (contingent or otherwise) distribution of its Property to do soits Equity Interest holders, except that, so long as no Default shall have occurred and be continuing at (i) the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Borrower may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Capital Stock), (ii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(eiii) the Borrower may make Restricted Payments pursuant to Holdings so that Holdings and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (iv) the Borrower may repurchase its declare and pay cash dividends to PLX in any fiscal year to pay the Borrower’s allocated share of Taxes (as defined in the Tax Allocation Agreement as it exists on the date hereof) due in the fiscal year such dividend is declared under the Tax Allocation Agreement as it exists on the date hereof, and (v) to the extent not permitted by clauses (i) to (iv) above, the Borrower may make Restricted Payments in respect of Equity Interests from employees of the Borrower in connection with an amount not to exceed $2,500,000 in the vesting aggregate minus the aggregate principal amount of equity awardsSenior Notes, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity InterestsSenior Subordinated Notes and Permitted Additional Notes Redeemed under Section 9.04(b)(i).
Appears in 1 contract
Sources: Credit Agreement (Plains Exploration & Production Co)
Restricted Payments. Declare No Loan Party shall, nor shall it permit any of its Subsidiaries to, declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings the Parent (which shall distribute such amounts to its equity holders) (such Restricted Payments, which for the sake of clarity shall exclude those Restricted Payments otherwise permitted under Section 8.24(c) below, “Ordinary Dividends”), up to an amount not to exceed the greater of (i) 95% of MFFO for the most recently ended period of four Fiscal Quarters; and (ii) the amount required for the Parent to maintain its status as a REIT (i.e., to satisfy the distribution requirements set forth in Section 857(a) of the Code); provided, that during the continuance of an Event of Default (other than an Event of Default pursuant to Section 9.1(b) hereof resulting from a violation of Section 8.5 hereof that continues for more than 10 Business Days after written notice of such violation is delivered to the Borrower by the Administrative Agent), Ordinary Dividends shall not exceed the amounts described in clause (a)(ii) above; provided, further, that following any Bankruptcy Event with respect to the Parent or the Borrower or the acceleration of the Obligations, neither the Borrower nor the Parent shall be permitted to make any Ordinary Dividends;
(b) (i) any Subsidiary may make Restricted Payments, directly or indirectly, to the Borrower or any other Subsidiary that is a Guarantor and (ii) any non-wholly-owned Subsidiary may make Restricted Payments directly to its equity owners based on such equity owners’ pro rata ownership of such Subsidiary;
(c) the Borrower may declare and make Restricted Payments to the Parent (which shall distribute such amounts to its equity holders) from capital gains from the sale, transfer, lease or other disposition of its Property (such Restricted Payments, “Special Dividends”), which Special Dividends may be in excess of the thresholds set forth for Ordinary Dividends in clause (a) above, so that Holdings long as at the time of declaration, no Default or Event of Default exists;
(d) any of Parent, the Borrower or any Subsidiary may repurchase declare and make dividend payments or other distributions payable solely in the common Stock of such entity including (i) “cashless exercises” of options granted under any share option plan adopted by the Borrower, (ii) distributions of rights or equity securities under any rights plan adopted by the Borrower and (iii) distributions (or effect stock splits or reverse stock splits) with respect to its Equity Interests from employees Stock payable solely in additional shares of its Stock;
(e) so long as no Change of Control results therefrom, the Parent, the Borrower and each Subsidiary may make Restricted Payments in connection with the vesting implementation of equity awardsor pursuant to any retirement, in order to satisfy health, stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of compensation for the related tax withholding obligationsbenefit of the directors, officers and employees of the Parent, the Borrower and the Subsidiaries; and
(f) Holdings the Parent may directly or indirectly purchase, redeem or otherwise acquire Equity Interests issued or retire of any of the its Stock so long as (i) the aggregate amount of such payments made from and after the Closing Date shall not exceed $50,000,000, (ii) immediately prior thereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default has occurred or would result therefrom; and (iii) for payments aggregating in excess of $20,000,000 in any Fiscal Quarter, within 15 days after reaching such threshold, the Borrower shall deliver to the Administrative Agent for distribution to each of the Lenders a Compliance Certificate, calculated on a pro forma basis based on information then available to the Borrower at the end of the most recently ended Fiscal Quarter, evidencing the continued compliance by it the Parent and the Subsidiaries with the proceeds received from terms and conditions of the substantially concurrent issue financial covenants contained in Section 8.20, after giving effect to such payments during such Fiscal Quarter (each, a “Pro Forma Compliance Certificate”); provided, that, if based on the calculations in the Pro Forma Compliance Certificate, the Borrower is not in compliance with the covenants contained in Section 8.20, then the Borrower shall suspend all orders for automatic trades with respect the Parent’s Stock until such time as the Borrower provides a quarterly Compliance Certificate under Section 8.5(e) hereof evidencing Borrower’s compliance with the financial covenants contained in Section 8.20 (the period during which trades are suspended is the “Suspension Period”); provided, further, that during the Suspension Period, the Borrower shall deliver a pro forma Compliance Certificate showing pro forma compliance with the covenants contained in Section 8.20 prior to any direct or indirect purchase, redemption or other acquisition or retirement of new shares any of its Equity Interests (other than Disqualified Equity Interests)the Parent’s Stock.
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, except:
(a) the Borrower may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock;
(b) the Borrower may make ESOP Purchases in an aggregate amount not to exceed $10,000,000 in any fiscal year; provided that the aggregate amount of ESOP Purchases made by the Borrower after the Second Restatement Effective Date shall not exceed $50,000,000;
(c) the Borrower may make Restricted Payments so long as (i) after giving effect to such Restricted Payment on a pro forma basis, the Consolidated Leverage Ratio for the period of the four consecutive fiscal quarters of the Borrower most recently ended prior to such Restricted Payment for which financial statements have been delivered does not exceed 3.50 to 1.00 and (ii) no Default shall have occurred and be continuing or incur would result therefrom;
(d) the Borrower may make Restricted Payments not otherwise permitted hereunder in an aggregate amount not to exceed $25,000,000 in any obligation (contingent or otherwise) to do so, except that, fiscal year 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower or its Subsidiaries may issue shares of Capital Stock and make other equity awards to any eligible Person under the terms of any equity plan maintained by the Borrower or its Subsidiaries (a “Borrower Equity Plan”), including without limitation, making any Restricted Payment to any such eligible Person to satisfy any applicable tax withholding requirement with respect to any equity award granted to such Person;
(f) the Borrower and any of its Subsidiaries (i) may repurchase Capital Stock issued to employees, directors, and officers of the Borrower or any of its Subsidiaries (including repurchases of Capital Stock from severed or terminated employees, directors, and officers) pursuant to any Borrower Equity Plan; provided that the aggregate amount of such payments under this clause (f) shall not exceed $2,500,000 in any fiscal year and (ii) may declare and pay dividends or make Restricted Payments to one another to effect repurchases permitted by clause (i);
(g) the Borrower may make Restricted Payments not otherwise permitted hereunder in an aggregate amount not to Holdings exceed $25,000,000 in any fiscal year so that Holdings long as (i) no Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to such dividend or payment, the Borrower has Minimum Liquidity of at least $100,000,000;
(h) the Borrower may repurchase its Equity Interests from employees in connection with the vesting of equity awardsmake Restricted Payments, on or prior to December 31, 2013, in order an aggregate amount not to satisfy exceed $50,000,000 so long as (i) no Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to such dividend or payment, the related tax withholding obligationsBorrower has Minimum Liquidity of at least $100,000,000; and
(fi) Holdings the Borrower may purchasemake Restricted Payments in an aggregate amount not to exceed $50,000,000 in the calendar year ending December 31, redeem 2015 so long as (1) no Event of Default shall have occurred and be continuing or otherwise acquire Equity Interests issued would result therefrom and (2) after giving effect to such dividend or payment, the Borrower has Minimum Liquidity of at least $100,000,000; provided that if the difference between $50,000,000 and the aggregate amount of Restricted Payments made by it the Borrower during the calendar year ending December 31, 2015 pursuant to this clause (i) is greater than zero, the dollar amount of such difference may be carried over and used by the Borrower, subject to the conditions set forth in clauses (1) and (2) of this clause (i), for Restricted Payments during the calendar year ending December 31, 2016; provided that nothing herein shall be deemed to prohibit the payment of dividends by any Subsidiary of the Borrower to the Borrower, any other Subsidiary of the Borrower or, if applicable, any minority shareholder of such Subsidiary (in accordance with the proceeds received from percentage of the substantially concurrent issue Capital Stock of new shares of its Equity Interests (other than Disqualified Equity Interestssuch Subsidiary owned by such minority shareholder).
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Restricted Payments. Declare or makeThe Credit Parties will not, nor will they 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, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefromexcept:
(a) each Subsidiary may to make dividends payable solely in the same class of Equity Interest of such Person;
(b) to make Restricted Payments (i) to any Credit Party or Subsidairy thereof and to any other Person that owns an Equity Interests Interest in 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) Holdings and each Subsidiary may declare and pay dividends with respect ; provided, that the aggregate amount of all such Restricted Payments made to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (Persons other than Disqualified Equity InterestsCredit Parties or Subsidiaries of Credit Parties pursuant to this clause (i) of such preferred Equity Interests or shall not exceed $2,500,000 in shares of its common Equity Interestsany fiscal year and (ii) to any Credit Party;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(d) to purchase, redeem or otherwise acquire Equity Interests issued by it from employees of any Subsidiary in an aggregate amount not to exceed $500,000 in any fiscal year;
(e) so long as after giving effect to such payments the Credit Parties shall be in compliance with each of the financial covenants set forth in Section 5.9 hereof, to make regularly scheduled payments of (i) interest to the holders of Subordinated Debt and (ii) principal to the holders of Subordinated Debt incurred in connection with any Permitted Acquisition, in each case in accordance with the terms thereof;
(f) the acquisition by the Borrower of its Equity Interests from its directors or employees in connection with compensation arrangements or in connection with the exercise of any such Person’s stock options (i) through “net issuance” methods pursuant to transactions in which the Credit Parties and their Subsidiaries make no cash payments to such directors or employees or (ii) in an aggregate amount not to exceed $5,000,000 per fiscal year;
(g) at any time after December 31, 2008, to make open market purchases or other than Disqualified acquisitions of Equity Interests)Interests of the Borrower in an aggregate amount not to exceed $200,000,000 per fiscal year so long as after giving effect to each such purchase or acquisition on a Pro Forma basis (i) no Default or Event of Default shall then exist or would result therefrom and (ii) the Credit Parties shall be in compliance with each of the financial covenants set forth in Section 5.9 hereof;
(h) any payment with respect to any earnout obligation incurred as the deferred purchase price of property or services purchased by such Person; and
(i) to make other Restricted Payments in an aggregate amount not to exceed $5,000,000 in any fiscal year so long as after giving effect to each such Restricted Payment on a Pro Forma basis (i) no Default or Event of Default shall then exist or would result therefrom and (ii) the Credit Parties shall be in compliance with each of the financial covenants set forth in Section 5.9 hereof.
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, except:
(a) the Borrower may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock;
(b) the Borrower may make ESOP Purchases in an aggregate amount not to exceed $10,000,000 in any fiscal year; provided that the aggregate amount of ESOP Purchases made by the Borrower after the Fourth Restatement Effective Date shall not exceed $50,000,000;
(c) the Borrower may make Restricted Payments so long as (i) after giving effect to such Restricted Payment on a pro forma basis, the Consolidated Leverage Ratio for the period of the four consecutive fiscal quarters of the Borrower most recently ended prior to such Restricted Payment for which financial statements have been delivered does not exceed 3.50 to 1.00 and (ii) no Default shall have occurred and be continuing or incur would result therefrom;
(d) the Borrower may make Restricted Payments not otherwise permitted hereunder in an aggregate amount not to exceed $45,000,000 in any obligation (contingent or otherwise) to do so, except that, fiscal year 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower or its Subsidiaries may issue shares of Capital Stock and make other equity awards to any eligible Person under the terms of any equity plan maintained by the Borrower or its Subsidiaries (a “Borrower Equity Plan”), including without limitation, making any Restricted Payment to any such eligible Person to satisfy any applicable tax withholding requirement with respect to any equity award granted to such Person;
(f) the Borrower and any of its Subsidiaries (i) may repurchase Capital Stock issued to employees, directors, and officers of the Borrower or any of its Subsidiaries (including repurchases of Capital Stock from severed or terminated employees, directors, and officers) pursuant to any Borrower Equity Plan; provided that the aggregate amount of such payments under this clause (f) shall not exceed $15,000,000 in any fiscal year and (ii) may declare and pay dividends or make Restricted Payments to one another to effect repurchases permitted by clause (i);
(g) the Borrower may make Restricted Payments not otherwise permitted hereunder in an aggregate amount not to Holdings exceed $45,000,000 in any fiscal year so that Holdings may repurchase its Equity Interests from employees in connection with long as (i) no Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to such dividend or payment, the vesting Borrower has Minimum Liquidity of equity awards, in order to satisfy the related tax withholding obligationsat least $100,000,000;
(h) [reserved];
(i) [reserved]; and
(fj) Holdings the Borrower may purchasemake Restricted Payments in an aggregate amount not to exceed $50,000,000 after the Fourth Restatement Effective Date, redeem so long as (1) no Event of Default shall have occurred and be continuing or otherwise acquire Equity Interests issued would result therefrom and (2) after giving effect to such Restricted Payment, the Borrower has Minimum Liquidity of at least $100,000,000; provided that nothing herein shall be deemed to prohibit the payment of dividends by it any Subsidiary of the Borrower to the Borrower, any other Subsidiary of the Borrower or, if applicable, any minority shareholder of such Subsidiary (in accordance with the proceeds received from percentage of the substantially concurrent issue Capital Stock of new shares of its Equity Interests (other than Disqualified Equity Interestssuch Subsidiary owned by such minority shareholder).
Appears in 1 contract
Sources: Credit Agreement (Griffon 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 or Event of Default shall have occurred and be continuing at the time of prior to, or immediately after giving effect to, any action described below or would result therefrom:
(a) each Subsidiary of a Loan Party may make Restricted Payments to any Person that 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 madeLoan Party;
(b) Holdings the Loan Parties and each Subsidiary may declare and pay dividends with respect to its common Equity Interests make dividend payments or other distributions payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests of such Person (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsStock);
(c) Holdings the Lead Borrower may make utilize a portion of the proceeds of the Senior Notes to pay cash dividends to its shareholders in any other Restricted Payments if immediately prior transaction or group of transactions which are part of a common plan completed on or within thirty (30) calendar days of the Closing Date, in an aggregate amount not to and after giving effect (including giving effect on exceed $105,000,000, provided that such dividends shall be made solely from identifiable cash proceeds of the Senior Notes which have been segregated by the Lead Borrower or the Parent in a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterseparate account;
(d) Holdings the Loan Parties and each Subsidiary may make purchase, redeem or otherwise acquire Equity Interests held by any other Restricted Paymentsof its present or former employees, so long as the aggregate amount of all directors or consultant pursuant to any management equity plan or stock option plan, provided that Restricted Payments made pursuant to this clause (d) does shall not exceed $50,000,000 2,500,000 in the aggregate in any fiscal year of Holdings Fiscal Year (it with unused amounts in any Fiscal Year being understood that any “net down payments” made pursuant carried over to clause (e) below, shall not count towards such $50,000,000the next succeeding Fiscal Year);
(e) if the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with Payment Conditions are satisfied, the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings Loan Parties and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it it;
(f) if the Payment Conditions are satisfied, the Parent may declare or pay dividends or distributions with respect to any capital stock or other Equity Interest of the proceeds received from Parent;
(g) the substantially concurrent issue Loan Parties may make Restricted Payments for the purpose of new shares of its paying Tax Distributions; and
(h) the Loan Parties and each Subsidiary may pay any dividend or redeem any Equity Interests within ten (other than Disqualified Equity Interests)10) days after the date of declaration or call for redemption thereof if, at such date of declaration or call for redemption, such payment was otherwise permitted pursuant to this Section 7.06.
Appears in 1 contract
Sources: Credit Agreement (Tops PT, LLC)
Restricted Payments. Declare or makeA. Borrowers shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment; PROVIDED, or incur any obligation (contingent or otherwise) to do soHOWEVER, 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:
(ai) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Borrowers may declare and pay dividends and distributions payable in respect of Existing Preferred Stock; PROVIDED, that such dividends or distributions are regularly scheduled and paid quarterly in accordance with respect to its common Equity Interests payable solely in additional shares Borrowers' ordinary course of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interestsbusiness;
(cii) Holdings Borrowers may declare and pay dividends and distributions in an amount required for Meditrust to maintain its REIT status; PROVIDED that all existing and future net operating loss carry forwards must first be applied to reduce REIT taxable income and to otherwise offset any income tax liability and PROVIDED, further that the Borrowers shall have first declared and paid all required dividends and distributions described under clause (i) above;
(iii) in addition to the payments under clauses (i) and (ii) above, Borrowers may declare and pay cash dividends and make distributions on account of or repurchase any other Restricted Payments if immediately prior of their capital stock including without limitation any paired share repurchases; PROVIDED (A) the aggregate amount thereof shall not exceed $20,000,000 in any Fiscal Year; (B) after the Conversion and only in the same Fiscal Year in which the Conversion is completed, such aggregate amount shall be increased to and $30,000,000; (C) in the event that after giving effect (including giving effect on a pro forma basis) effect to any borrowing made in connections with such Restricted Paymentpayments, (1) no Potential Event of Default or Event of Default then exists, (2) the Consolidated Total Leverage Ratio is (x) less than 3.00 4.00:1.00, (3) the Conversion has been completed and (4) the Revolving Loan Commitments exceed the Total Utilization of Revolving Loan Commitments by not less than $50,000,000, such aggregate amount shall be increased to 1.00 $40,000,000 for each Measurement Period ending during the period commencing on the Effective Date through September 30Fiscal Year; provided that such $20,000,000, 2023$30,000,000 or $40,000,000, as applicable pursuant to (A), (yB) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (zC) less than 2.50 hereof, shall be increased by an amount equal to 1.00 for each Measurement Period ending thereafter;
the excess, if any, of (dX) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments permitted pursuant to this subsection 7.5A(iii) for the previous Fiscal Year over (Y) the actual amount of Restricted Payments made pursuant to this clause (dsubsection 7.5A(iii) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood such previous Fiscal Year; and PROVIDED that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) dividends paid after the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued Conversion by it with the proceeds received from the substantially concurrent issue of new Meditrust on shares of its Equity Interests (other than Disqualified Equity Interests).common stock to Meditrust OpCo shall not be included as dividends or
Appears in 1 contract
Sources: Credit Agreement (La Quinta Corp)
Restricted Payments. Declare None of the Obligors nor any Restricted Subsidiary will declare or make, directly or indirectlyagree to pay or make, 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 therefromexcept:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings dividends or distributions on capital stock of the type Borrower so long as at the time of Equity Interest such dividend or distribution, and after giving pro forma effect thereto, (i) no Revolving Loans or Swingline Loans are outstanding, (ii) no Event of Default exists and (iii) the Borrower is in respect of which such Restricted Payment is being madecompliance with Section 6.18;
(b) Holdings and each Subsidiary may declare and pay dividends or distributions on Equity Interests of Restricted Subsidiaries ratably with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to payments of dividends and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, distributions made with shares or units of capital stock of the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterBorrower;
(d) Holdings may make any other Restricted Paymentsredemptions of capital stock of employees, directors or officers of the Borrower on the following conditions: (i) if no Revolving Loans or Swingline Loans are outstanding at the time of such redemption, the amount of such redemption shall not be limited, so long as as, if the aggregate amount of such redemption, when combined with all Restricted Payments other redemptions made pursuant to under this clause (d) does in the same calendar year, exceeds $5,000,000, the Borrower demonstrates pro forma compliance with Section 6.18; and (ii) if Revolving Loans or Swingline Loans are outstanding at the time of such redemption, the amount of such redemption, when combined with all other redemptions made under this clause (d) in the same calendar year, shall not exceed $50,000,000 in any fiscal year 5,000,000; and
(e) redemptions of Holdings capital stock of Persons other than employees, directors or officers of the Borrower on the following conditions: (it being understood that any “net down payments” i) if no Revolving Loans or Swingline Loans are outstanding at the time of such redemption, the amount of such redemption shall not be limited, so long as, if the amount of such redemption, when combined with all other redemptions made pursuant to under this clause (e) belowduring the term of this Agreement, exceeds $10,000,000, the Borrower demonstrates pro forma compliance with Section 6.18; and (ii) if Revolving Loans or Swingline Loans are outstanding at the time of such redemption, the amount of such redemption, when combined with all other redemptions made under this clause (e) during the term of this Agreement, shall not count towards such exceed $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)10,000,000.
Appears in 1 contract
Sources: Credit Agreement (Cardtronics Inc)
Restricted Payments. Declare The Parent and the Borrower will not, and will not permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any dividend on any class of its stock, or make any payment 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 shares of common stock or Indebtedness subordinated to the Obligations of the Borrower or any Guarantee thereof or any options, warrants, or other rights to purchase such common stock or such Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment, or incur any obligation (contingent or otherwise) to do so”), except thatfor
(a) dividends payable by the Parent or the Borrower solely in shares of any class of its common stock;
(b) Restricted Payments made by any Subsidiary of the Borrower to the Borrower or to another Subsidiary, on at least a pro rata basis with any other shareholders if such Subsidiary is not wholly owned by the Borrower and other wholly owned Subsidiaries;
(c) scheduled quarterly dividends paid on the Capital Stock of the Parent and interest on such subordinated Indebtedness, so long as no Default shall have or Event of Default has occurred and be is continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted PaymentsPermitted UIC Cash Dividends in an amount not to exceed the amount of UIC Cash then in effect;
(e) Permitted Other Dividends, so long as the aggregate amount of all Restricted Payments made distributed as Permitted Other Dividends, plus the aggregate amount invested in Permitted Other Investments pursuant to this clause (d) Section 7.4(i), does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations25,000,000; and
(f) Holdings may purchasedividends and distributions on, redeem or otherwise acquire Equity Interests issued by it with and redemptions and repurchases of, the proceeds received from Capital Stock of the Borrower paid to the Parent to fund on a substantially concurrent issue of new shares of its Equity Interests simultaneous basis Restricted Payments permitted under clause (other than Disqualified Equity Interests)d) and (e) above and Permitted Other Investments permitted under Section 7.4(i) above.
Appears in 1 contract
Sources: Revolving Credit Agreement (United Industrial Corp /De/)
Restricted Payments. Declare The Borrowers will not declare or make, directly or indirectly, make any Restricted Payment, or incur Payment during any obligation (contingent or otherwise) to do soFiscal Year, 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 may make Restricted Payments subject to any Person that owns Equity Interests in such Subsidiarythe second sentence of this Section 5.06(a), ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings Company and each Subsidiary the Operating Partnership may declare and pay dividends with respect make cash distributions to its common Equity Interests payable solely in additional shares shareholders and other equity owners, and to holders of its common Equity Interests, andUnits issued by the Operating Partnership, with respect to any Fiscal Quarter of the Company and the Operating Partnership, provided that (i) such cash distributions shall not exceed the minimum amount required to be distributed for the Company to remain in compliance with Section 5.38 and the Operating Partnership shall make no more than an equivalent per-unit distribution in cash to its preferred Equity Interests, payable solely in additional Equity Interests equity owners; (other than Disqualified Equity Interestsii) no Default or Event of Default shall exist at the time of such preferred Equity Interests cash distributions or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and arise after giving effect to such cash distributions; (including giving effect on iii) such cash distributions are made without incurring any Debt and without any amount of a pro forma basisRevolver Advance; and (iv) such cash distributions with respect any Fiscal Quarter of the Company and the Operating Partnership may be paid in such Fiscal Quarter or in a subsequent Fiscal Quarter. However, if at any time no Default or Event of Default exists and the Company maintains a minimum Debt Yield of 0.10, then notwithstanding the limitations in (i) and (iv) above, the Company may declare and make an additional cash distribution to its shareholders or other equity owners with respect to any such Restricted Payment, Fiscal Quarter of the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted PaymentsCompany, so long as the aggregate amount of all Restricted Payments distributions made pursuant to this clause (d) does for any 12-month period do not exceed $50,000,000 in any fiscal year 90% of Holdings Funds From Operations of the Company on a consolidated basis for the previous 12 months, provided that (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(ex) the Borrower may make Restricted Payments Company shall maintain a Debt Yield of 0.10 after giving effect to Holdings so that Holdings may repurchase its Equity Interests from employees such cash distributions, (y) both before and after giving effect to any such cash distributions, the Company shall maintain Liquidity of at least Seven Million Five Hundred Thousand Dollars ($7,500,000), and (z) no Default or Event of Default shall exist after giving effect to such cash distributions. Notwithstanding the foregoing, nothing in connection this Section 5.06(a) shall prohibit payment of Dividends on Preferred Stock or redemption amounts in respect of Preferred Stock which would otherwise be permitted in accordance with this Agreement; provided, however, Preferred Dividends on Preferred Stock shall be included in the vesting calculation of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with Funds From Operations of the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests).Company described above;
Appears in 1 contract
Restricted Payments. Declare or makeThe Borrower and Holdings will not, and will not permit any of their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted PaymentPayment except for the following:
(a) (i) Restricted Payments (A) by any Group Member that is a Loan Party to any Loan Party and (B) by any Group Member that is not a Loan Party to any Group Member and (ii) dividends and distributions by any Subsidiary of the Borrower that is not a Loan Party to any holder of its Stock, to the extent made to all such holders ratably according to their ownership interests in such Stock;
(b) dividends and distributions declared and paid on the common Stock of any Group Member (other than Holdings) ratably to the holders of such common Stock and payable only in common Stock of such Group Member; and
(c) other Restricted Payments in an aggregate amount not to exceed the portion, if any, of the Available Amount on the date of such Restricted Payment that the Borrower elects to apply to this clause (c), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied; provided that (A) the Total Leverage Ratio of the Borrower and its Subsidiaries determined on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 6.1(b) or (c), as applicable, as if such Restricted Payment had been made on the last day of such Fiscal Quarter, is equal to or less than 6.0:1.0 and (B) no Default or Event of Default has occurred and is continuing;
(d) the payment of any dividend or distribution 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 or the redemption, repurchase or retirement of Indebtedness if, at the date of any irrevocable redemption notice, such payment would have complied with the provisions of this Agreement;
(e) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Stock (other than Disqualified Stock) of the Borrower or any Parent Company held by any future, present or former employee, director or consultant of the Borrower, any of its Subsidiaries or any Parent Company (or permitted transferees, assigns, estates, trusts or heirs of such employee, director or consultant) either pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or upon the termination of such employee, director or consultant’s employment or directorship; provided, however, that the aggregate Restricted Payments made under this clause do not exceed $4.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $8.0 million in any calendar year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Stock (other than Disqualified Stock) of the Borrower and, to the extent contributed to the capital of the Borrower (other than through the issuance of Disqualified Stock), Stock of any of the Borrower’s Parents, in each case to members of management, directors or consultants of the Borrower, any of its Subsidiaries or any Parent Company that occurred after the Closing Date; plus
(ii) the cash proceeds of key man life insurance policies received by the Borrower and its Subsidiaries after the Closing Date; less
(iii) the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this clause (e); and provided further that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management, directors, employees or consultants of the Borrower or any Parent Company or Subsidiaries in connection with a repurchase of Stock of the Borrower or any of its Parents will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(f) purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Stock deemed to occur upon the exercise of stock options, warrants or other rights in respect thereof if such Stock represents a portion of the exercise price thereof;
(g) dividends, loans, advances or distributions to any Parent Company or other payments by the Borrower or any Subsidiary in amounts equal to (without duplication):
(a) the amounts required for any Parent Company to pay any Parent Expenses or any Related Taxes; or
(b) amounts constituting or to be used for purposes of making payments to the extent specified in clauses (c), (d), (f) and (k) of Section 8.9;
(h) the declaration and payment by the Borrower of, dividends on the common stock or common equity interests of the Borrower or any Parent Company following a public offering of such common stock or common equity interests, in an amount not to exceed 6% of the proceeds received by or contributed to the Borrower in or from any public offering in any fiscal year;
(i) payments by the Borrower, or incur loans, advances, dividends or distributions to any obligation Parent Company to make payments, to holders of Stock of the Borrower or any Parent Company in lieu of the issuance of fractional shares of such Stock, provided, however, that any such payment, loan, advance, dividend or distribution shall not be for the purpose of evading any limitation of this covenant or otherwise to facilitate any dividend or other return of capital to the holders of such Stock (contingent or otherwiseas determined in good faith by the Board of Directors);
(j) to do so, except that, so long as no Default shall have or Event of Default has occurred and be is continuing at the time of any action described below (or would result therefrom:), mandatory redemptions of Disqualified Stock issued as a Restricted Payment or as consideration for a Permitted Investment;
(ak) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Preferred Stock of the Borrower or any Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Preferred Stock of the Borrower or any Subsidiary, as the case may be, that, in each Subsidiary may make case, is permitted to be Incurred pursuant to Section 8.1; provided that any such Preferred Stock shall not mature or otherwise be mandatorily redeemable prior to the date that is 180 days after the later of (1) the Revolving Credit Termination Date and (2) if applicable, any Incremental Term Loan Maturity Date; and
(l) so long as no Default or Event of Default has occurred and is continuing (or would result from), Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to any Person exceed $20.0 million. For purposes of determining compliance with this Section 8.5, in the event that owns Equity Interests in such Subsidiarya Restricted Payment is permitted pursuant to this Section 8.5, ratably according the Borrower will be entitled to their respective holdings of the type of Equity Interest in respect of which classify such Restricted Payment is being made;
(bor portion thereof) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares on the date of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests payment or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any later reclassify such Restricted Payment, the Consolidated Leverage Ratio is Payment (xor portion thereof) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make in any other Restricted Payments, so long as the aggregate manner that complies with this covenant. The amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)cash) shall be the fair market value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Borrower or such Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be their face amount, and the fair market value of any non-cash Restricted Payment, property or assets other than cash shall be determined conclusively by the board of directors of the Borrower acting in good faith.
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, except (a) the Borrower 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 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; and (d) the Borrower may declare and pay cash dividends and make cash payments on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any obligation (contingent or otherwise) to do so, except thatEquity Interests in the Borrower without limit, so long as no Default shall have occurred and be continuing or would result therefrom; provided however that, in the case of this clause (d), if at the time of making any action described below such cash dividend or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings payment and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect thereto, the Borrower’s Consolidated Total Leverage Ratio calculated on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than basis exceeds 3.00 to 1.00 (with Consolidated Total Debt measured as of the date of such cash dividend or payment and Consolidated EBITDA measured for each Measurement the Reference Period ending during the period commencing on the Effective Date through September 30then most recently ended), 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as then the aggregate amount of all Restricted Payments such cash dividends and payments made pursuant to this clause (d) does during any period when the Consolidated Total Leverage Ratio calculated on a pro forma basis at the time of making such cash dividends or payments (and after giving effect thereto) exceeds 3.00 to 1.00, shall not exceed in aggregate $50,000,000 in 35,000,000 during any fiscal year or $70,000,000 during the term of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)this Agreement.
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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, or incur any obligation (contingent or otherwise) to do sohowever, 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 the Borrower may declare or make Restricted Payments cash distributions to any Person that owns Equity Interests its shareholders during the period of four consecutive fiscal quarters most recently ending in such Subsidiary, ratably according an aggregate amount not to their respective holdings exceed the greater of (i) 90.0% of Funds From Operations of the type of Equity Interest Borrower for such period or (ii) the amount required to be distributed for the Borrower to remain in respect of which such Restricted Payment is being madecompliance with Section 7.13.;
(b) Holdings and each Subsidiary the Borrower may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPreferred Dividends;
(c) Holdings the Borrower or any Subsidiary may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on acquire the Equity Interests of a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio Subsidiary that is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafternot a Wholly Owned Subsidiary;
(d) Holdings Subsidiaries that are not Wholly Owned Subsidiaries may make any other Restricted Payments, so long as the aggregate amount cash distributions to holders of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards Equity Interests issued by such $50,000,000)Subsidiaries;
(e) the Borrower may make Restricted Payments cash distributions to Holdings so that Holdings may repurchase its Equity Interests shareholders of capital gains resulting from employees in connection with gains from certain asset sales to the vesting extent necessary to avoid payment of equity awards, in order to satisfy taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the related tax withholding obligationsInternal Revenue Code; and
(f) Holdings Subsidiaries may purchase, redeem pay Restricted Payments to the Borrower or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (any other than Disqualified Equity Interests)Subsidiary.
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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, or incur any obligation (contingent or otherwise) to do so, except thatfor, so long as no Default shall have occurred and be continuing (other than with respect to Section 7.08(j) or Section 7.08(l)) exists at the time of any action described below making such Restricted Payment or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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[Reserved];
(b) Holdings 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 pay dividends with respect to administrative expenses of the Holding Company and its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests Subsidiaries (other than Disqualified Equity Intereststhe Borrower and its Subsidiaries) in an aggregate amount not to exceed $15,000,00025,000,000 for any period of such preferred Equity Interests or in shares of its common Equity Intereststwelve consecutive full calendar months;
(c) Holdings may make 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 Restricted Payments than the Borrower and its Subsidiaries) that are in effect on the FirstSecond Amendment Effective Date and identified in Schedule 7.08(c) (specifying the amount and due date (if immediately prior 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 giving effect the FirstSecond Amendment Effective Date; (including giving effect 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 $3,000,00010,000,000 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 FirstSecond Amendment 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 FirstSecond Amendment Effective Date, 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) to any basis as if such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing Payment had been made on the Effective Date 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 September 30(iv) above) may be paid from time to time but only in an amount not exceeding the amount of such obligations, 2023expenses or other amounts permitted under this clause (c), (y) less than 2.75 to 1.00 for each Measurement Period ending during as applicable, and at the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereaftertime the same are due and payable;
(d) Holdings may make 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 other Restricted Payments, so long as the aggregate amount Unrestricted Subsidiaries that are designated for purpose of all Restricted Payments made pursuant to making such dividends under this clause (d) does 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];Restricted Payments made by the Borrower or its Subsidiaries in Unrestricted Subsidiaries that are formed for the purpose of, and primarily engaged in, research and development material to any line of Business of the Borrower, in an aggregate principal amount not to exceed in any fiscal year, when combined with any Investments made pursuant to Section 7.07(p) in the same fiscal year, $50,000,000 25,000,000;
(f) the dividends and/or distributions contemplated by Section 7.01(j);
(g) [Reserved];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); provided that at the time of the declaration and making of each such dividend, the Borrower’s First Lien Indebtedness Ratio shall not exceed 3.75 to 1.00, 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;
(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 $200,000,000 in any fiscal year of Holdings the Borrower (it being understood and agreed that any “net down payments” the Borrower shall be permitted to carry forward $50,000,000 of unused amounts to the next succeeding fiscal year); provided that at the time of the declaration and making of each such dividend, the Borrower shall be in compliance with the First Lien Indebtedness Ratio required under Section 7.11, calculated on a pro forma basis as if such dividend had been declared and made pursuant to on the last day of the most recent period of four consecutive fiscal quarters of the Borrower; provided, further, from and after the date when the Available Amount reaches $200,000,000, dividends permitted under this clause (eh) below, shall not count towards such $50,000,000)thereafter be permitted in an amount up to the Available Amount in effect at any date of determination without regard to the stated annual dollar amount referred to above;
(ei) 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)(ii), in an aggregate amount not to exceed $250,000,000; provided that at the time of the declaration and making of each such dividend, (x) no Event of Default shall have occurred and be continuing or would result therefrom and (y) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees shall be in connection compliance with the vesting First Lien Indebtedness Ratio required under Section 7.11, calculated on a pro forma basis as if such dividend had been declared and made on the last day of equity awardsthe most recent period of four consecutive fiscal quarters of the Borrower;
(k) 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); provided that at the time of the declaration and making of each such dividend, the Borrower’s First Lien Indebtedness Ratio shall not exceed 3.75 to 1.00, 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;[Reserved];
(l) 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 order an aggregate amount not to satisfy exceed $50,000,000; provided that at the related tax withholding obligationstime of the declaration and making of each such dividend, no Event of Default shall have occurred and be continuing or would result therefrom;
(m) payments of cash dividends or loans to the Holding Company or the Borrower directly or indirectly from any Unrestricted Subsidiaries;
(n) [Reserved];
(o) Longevity Payments in an aggregate amount not to exceed $15,000,00025,000,000; and
(fp) Holdings may purchasepayments contemplated by Section 7.07(l). Nothing herein shall be deemed to prohibit the payment of any dividends or distributions by any Wholly Owned Subsidiary of the Borrower to the Borrower or any other such Wholly Owned Subsidiary; provided that, redeem notwithstanding anything in the Loan Documents to the contrary, no Designated SBG Subsidiary shall be permitted to make any dividend or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests other distributions, in cash or property (other than Disqualified Equity Interestsin its additional ownership interests), to the 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 such ownership interests or any option, warrant or other right to acquire any such ownership interests.
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Restricted Payments. Declare or makeA. Borrower and Holdings shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment; provided, however, that:
(i) Borrower may declare and pay dividends and distributions payable in respect of Existing Preferred Stock; provided, that such dividends or incur distributions are regularly scheduled and paid quarterly in accordance with Borrower’s ordinary course of business;
(ii) Borrower may declare and pay dividends in respect of its Class B Common Stock in an amount not to exceed $0.10 per share per Fiscal Year; and Borrower may redeem its Class B Common Stock for $.01 per share of such Class B Common Stock;
(iii) Borrower may declare and pay quarterly dividends and distributions in an amount required for Borrower to maintain its REIT status; provided that all existing and future net operating loss carry forwards must first be applied to reduce REIT taxable income and to otherwise offset any obligation income tax liability and provided, further that the Borrower shall have first declared and paid all required dividends and distributions described under clauses (contingent i) and (ii) above;
(iv) in addition to the payments under clauses (i), (ii) and (iii) above, Holdings and Borrower may declare and pay cash dividends and make distributions on account of or otherwiserepurchase any of their capital stock; provided that the aggregate amount thereof shall not exceed (a) $20,000,000 in any Fiscal Year or (b) in the event that at the time of and after giving pro forma balance sheet effect to any Revolving Loans made in connection with such payments, (1) the Total Leverage Ratio is less than 4.50:1.00, (2) the Revolving Loan Commitments exceed the Total Utilization of Revolving Loan Commitments by not less than $50,000,000 and (3) no Potential Event of Default or Event of Default then exists, $40,000,000 in any Fiscal Year; provided further that the maximum aggregate annual amount of such dividends, distributions and repurchases which is permitted pursuant to the foregoing proviso (the “Maximum Share Payment Amount”) shall be increased by an amount equal to the excess, if any, of such Maximum Share Payment Amount for any Fiscal Year (without giving effect to any adjustment in accordance with this proviso) over the amount of such dividends, distributions and repurchases which are actually made in such immediately preceding Fiscal Year;
(v) Borrower and Holdings may make Restricted Payments to redeem shares of their capital stock or warrants or options to acquire any such shares from employees of Borrower and Holdings and their Subsidiaries (a) upon the death or other termination of employment of such employees, as authorized by the terms of Holdings’ and its Subsidiaries’ stock option plans or (b) to do so, except that, so long as the extent required to permit any non-executive employees to meet their tax obligations; provided that no Event of Default shall have occurred and be continuing or would arise as a result of any such Restricted Payments;
(vi) Holdings and Borrower may, within two years after issuance of common stock (other than any issuance of common stock to employees or directors of Holdings and its Subsidiaries), repurchase common stock or preferred stock of Holdings or Borrower ; provided that (a) the amount of common stock and preferred stock so repurchased shall not exceed the lesser of (x) the net cash proceeds of such common stock issuance, after giving effect to all other applications of such net cash proceeds by Holdings and its Subsidiaries and (y) $100,000,000, and (b) at the time of any action described below such repurchase and after giving pro forma effect thereto, (x) there are no outstanding Revolving Loans and (y) the amount of Cash and Cash Equivalents of Holdings and its Subsidiaries is not less than the aggregate amount required to redeem, repurchase or would result therefrom:
(a) each Subsidiary may make Restricted Payments repay Borrower’s Senior Notes maturing or scheduled to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings be redeemable at the option of the type of Equity Interest holders thereof in respect of which such Restricted Payment is being made2003 and 2004;
(bvii) Borrower and Holdings may make regularly scheduled payments of interest on Subordinated Indebtedness permitted pursuant to subsections 7.1(v) and (vi), in accordance with the terms of and to the extent required by, the provisions of the indentures governing such Subordinated Indebtedness; provided that no Potential Event of Default under subsection 8.1 or Event of Default shall have occurred and be continuing or would arise as a result of such Restricted Payment; and
(viii) Borrower and Holdings may redeem, repurchase, retire or otherwise acquire, all or part of Borrower’s outstanding Series B Preferred Stock as part or all of the purchase consideration for the sale of Telematrix Equipment, Inc. and Telematrix Equipment, LLC, and Borrower or Holdings may issue preferred stock having substantially the same terms and conditions as Borrower’s outstanding Series B Preferred Stock in exchange for Borrower’s outstanding Series B Preferred Stock..
B. Borrower and Holdings shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, prepay, redeem, repurchase, retire, defease or make any similar payment with respect to any Indebtedness (other than Indebtedness under this Agreement); provided that if (A) no Potential Event of Default or Event of Default shall have occurred and be continuing or would arise as a result of the proposed payments (including all fees, call premiums or other tender costs associated therewith), and (B) with respect to the following clause (1), such prepayment or repurchase is completed on a basis that is economically advantageous to Borrower and Holdings on a net present value basis, (1) Borrower and Holdings may prepay, redeem, repurchase, retire, defease or make similar payments with respect to Indebtedness maturing, or redeemable at the option of the holder thereof to the extent the holder exercises such option, prior to the Revolving Loan Commitment Termination Date, including without limitation (i) Borrower’s 7.82% Senior Notes due September 2026, (ii) Borrower’s 7.25% Senior Notes due March 2004, (iii) the 7.114% Securities, which securities will not be thereafter sold or transferred by Borrower, (iv) Borrower’s 7.40% Notes due September 2005, and (v) Borrower’s Medium Term Notes maturing in September 2005, January 2006 and February 2007; and (2) Holdings and each Subsidiary its Subsidiaries may declare and pay dividends prepay, redeem, repurchase, retire, defease or make similar payments with respect to its common Equity Interests payable solely in additional shares (A) intercompany Indebtedness permitted under this Agreement, (B) secured Indebtedness permitted under this Agreement upon the sale or other disposition of its common Equity Intereststhe collateral securing such secured Indebtedness and (C) Borrower’s Senior Notes due August 2007 to the extent such redemption, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interestsrepurchase or repayment is made out of the proceeds of Refinancing Indebtedness permitted by subsection 7.1(v) and at the time of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymentredemption, repurchase or repayment there are no outstanding Revolving Loans and the Consolidated Leverage Ratio amount of Cash and Cash Equivalents of Holdings and its Subsidiaries is (x) not less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount required to redeem, repurchase or repay all of all Restricted Payments made pursuant the Borrower’s Senior Notes maturing or scheduled to this clause (d) does not exceed $50,000,000 in any fiscal year be redeemable at the option of the holders thereof prior to the Revolving Loan Commitment Termination Date. In addition, notwithstanding the foregoing, Borrower and Holdings (it being understood that any “net down payments” made pursuant shall be permitted to clause (e) below, shall not count towards such $50,000,000);
(e) exercise their repurchase option with respect to the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)7.114% Notes.
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Restricted Payments. Declare The Borrower shall not, and shall not permit any Subsidiary or makeother Loan Party to, directly declare or indirectly, make any Restricted Payment; provided, or incur any obligation (contingent or otherwise) to do sohowever, 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 the Borrower may (x) declare and make Restricted Payments cash distributions to its common shareholders during any Person that owns Equity Interests fiscal year in such Subsidiary, ratably according an aggregate amount not to their respective holdings exceed the greater of (i) 90.0% of Funds From Operations of the type of Equity Interest Borrower for such fiscal year or (ii) the amount for the Borrower to remain in respect of which such Restricted Payment is being madecompliance with Section 7.13. and (y) declare and make Preferred Dividends;
(b) Holdings and each Subsidiary the Borrower may declare and pay dividends with respect make cash distributions to its common Equity Interests payable solely in additional shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(c) the Borrower may make cash payments to repurchase outstanding shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares any of its Preferred Stock, common stock or other similar common Equity Interests;
(cd) Holdings Subsidiaries may make pay Restricted Payments to the Borrower or any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);Subsidiary; and
(e) the Borrower may distribute any extraordinary distributions received by the Borrower in respect of its Investments in SNH and HPT. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default shall have occurred and be continuing, the Borrower may only declare or make cash distributions to its shareholders during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Borrower to remain in compliance with Section 7.13. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(f) or Section 10.1.(g) shall have occurred and be continuing, or if as a result of the occurrence of any other Event of Default the Obligations have been accelerated pursuant to Section 10.2.(a), the Borrower shall not, and shall not permit any Subsidiary or other Loan Party to, make any Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (any Person whatsoever other than Disqualified Equity Interests)to the Borrower or any Guarantor.
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Restricted Payments. Declare No Credit Party shall, nor shall it permit any of its Subsidiaries to, 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 of the Borrower may make Restricted Payments to any Person that 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) Holdings and each Subsidiary the Borrower may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings may make redemptions or repurchases of Equity Interests in the Borrower from employees and former employees; provided, that, (i) the aggregate amount of all such redemptions or repurchases made pursuant to this clause (c) in any other Restricted Payments if immediately prior to Fiscal Year shall not exceed $2,000,000, and (ii) after giving effect to any such redemption or repurchase on a Pro Forma Basis, no Default or Event of Default shall exist;
(including d) Restricted Payments consisting of announced dividends that satisfied the conditions of any other clause of this Section 8.4 at the time of announcement thereof;
(e) so long as no Default or Event of Default exists or would result therefrom, the making by the Borrower of quarterly dividend payments in respect of common stock of the Borrower in an aggregate amount not to exceed $10,000,000 in any Fiscal Year;
(f) Restricted Payments consisting of dividends paid by Zephyr Acquisition Company to Heritage Property & Casualty Insurance Company as a holder of preferred Equity Interests pursuant to the terms of a consent order issued by an applicable Insurance Regulatory Authority; and
(g) other Restricted Payments, so long as:
(i) no Default or Event of Default exists or would result therefrom;
(ii) on a Pro Forma Basis after giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is at least 0.25:1.00 (xa “quarter turn”) less than 3.00 to 1.00 the Consolidated Leverage Ratio required for each Measurement Period ending during the period commencing on consisting of the Effective Date through September 30, 2023, four (y4) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligationsconsecutive full Fiscal Quarters most recently ended; and
(fiii) Holdings may purchaseafter giving effect to any such Restricted Payment, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue there remains at least Twenty-Five Million Dollars ($25,000,000) of new shares of its Equity Interests (other than Disqualified Equity Interests)Liquidity.
Appears in 1 contract
Sources: Credit Agreement (Heritage Insurance Holdings, Inc.)
Restricted Payments. Declare or make, directly or indirectly, No Credit Party shall make any Restricted Payment, except (a) intercompany loans and advances between Borrowers to the extent permitted by Section 6.3, (b) dividends and distributions by Subsidiaries of any Borrower paid to such Borrower, (c) employee loans permitted under Section 6.4(b), (d) payments of principal and interest of Intercompany Notes issued in accordance with Section 6.3 and, to the extent not prohibited by any applicable subordination provisions, payments of interest on Subordinated Debt; and (e) subject to the provisos which follow in each of subsections (i, (ii) and (iiiii) below, SMP may (i) pay cash dividends up to $15,000,000 in any twelve (12) month period provided that (x) Credit Parties shall have Excess Formula Availability on a pro forma basis of not less than $20,000,000 and (y) no Default 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 occur as a result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings of the type payment of Equity Interest in respect such cash dividend, (ii) make payments on account of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares the purchase or redemption of its common Equity Interestsstock, andprovided that (x) the aggregate cash utilized to effectuate such purchases or redemptions shall not exceed $10,000,000 in any calendar yearFiscal Year, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interestsy) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect Credit Parties shall have Excess Formula Availability on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) basis of not less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or $30,000,000 and (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
no Default or Event of Default shall have occurred and be continuing or would occur as a result of such purchases or redemptions, and (diii) Holdings may make any other Restricted Paymentsrefinance, so long as repurchase or redeem Subordinated Debt under the 2009 Indenture provided that (w) the aggregate amount of all Restricted Payments made pursuant to this clause (d) does such refinanced, repurchased or redeemed Subordinated Debt shall not exceed $50,000,000, (x) no Default or Event of Default shall have occurred or be continuing or would occur as result of such refinance, repurchase or redemption and (y) Credit Parties shall have Excess Formula Availability on a pro forma basis of not less than $30,000,000 after giving effect to such refinance, repurchase or redemptionany other Restricted Payment so long as after giving effect to such payment Aggregate Borrowing Availability is not less than $50,000,000 in any fiscal year and Borrowers shall have a Fixed Charge Coverage Ratio for the twelve (12) month period then ended of Holdings not less than 1.15:1.00 on a pro forma basis as if such payment had been made on the first day of such twelve (it being understood that any “net down payments” made pursuant to clause (e12) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)month period.
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, 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 of the Borrower may declare and make Restricted Payments ratably to any Person that owns 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) Holdings and each Subsidiary with respect to the fiscal year of the Borrower ending December 31, 2017, the Borrower may declare and pay dividends with respect make, directly or indirectly,
(i) any Restricted Payment so long as no Event of Default shall have occurred and be continuing or would result therefrom; and
(ii) if an Event of Default has occurred and is continuing or would result therefrom, Restricted Payments in an aggregate amount equal to the amount required to be paid by the Borrower to its common Equity Interests payable solely equity holders in additional shares order for the Borrower to (x) maintain its qualification as a REIT and (y) avoid the payment of its common Equity Interestsfederal or state income or excise tax; provided, andhowever, with respect no Restricted Payments shall be permitted under this clause (b)(ii) following an acceleration of the Obligations pursuant to its preferred Equity InterestsSection 8.02 or during the continuance of an Event of Default under Section 8.01(a), payable solely in additional Equity Interests (other than Disqualified Equity Interestsf) of such preferred Equity Interests or in shares of its common Equity Interests(g);
(c) Holdings with respect to the fiscal year of the Borrower ending December 31, 2018 and each fiscal year of the Borrower thereafter, the Borrower may make any other declare and make, directly or indirectly, Restricted Payments if immediately prior in an aggregate amount equal to and after giving effect the greater of (including giving effect i) 110% of “Adjusted Funds From Operations” (calculated on a pro forma basisbasis consistent with the Form S-11) for such fiscal year and (ii) the amount of Restricted Payments required to any such Restricted Payment, be paid by the Consolidated Leverage Ratio is Borrower to its equity holders in order for the Borrower to (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, maintain its qualification as a REIT and (y) less than 2.75 avoid the payment of federal or state income or excise tax; provided, however, no Restricted Payments shall be permitted under this clause (c) following an acceleration of the Obligations pursuant to 1.00 for each Measurement Period ending Section 8.02 or during the period commencing October 1continuance of an Event of Default under Section 8.01(a), 2023 through December 31, 2024 (f) or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterg);
(d) Holdings may make any other Restricted Payments, so long as no Default shall have occurred and be continuing or would result therefrom, the aggregate amount Borrower may purchase, redeem, retire, acquire, cancel or terminate its Equity Interests so long as after giving effect thereto the Loan Parties are in compliance with the provisions of all Section 7.11 on a pro forma basis immediately after giving effect to the making of such Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);Payment; and
(e) any Consolidated Party may declare and make dividend payments or other distributions payable solely in the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its common stock or other common Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)such Person.
Appears in 1 contract
Restricted Payments. Declare or makeThe Borrower shall not, directly or indirectlyand shall not permit its Subsidiaries to, make any Restricted PaymentPayments other than the following: (a) ratable distributions by Subsidiaries and joint ventures of the Borrower or its Subsidiaries, to the Borrower and/or to Subsidiaries of the Borrower and the other joint venturers therein, (b) ratable distributions paid only in common (non-preferential and non-redeemable) equity securities, (c) distributions in connection with stock option or incur other benefit plans for management and employees, (d) payment of management, marketing services, credit support and general and administrative fees and expenses in accordance with its governing documents and/or the other arrangements or agreements permitted by Section 6.13, and payment of or reimbursement for (or indemnification for) costs, fees and expenditures made or incurred for or on behalf of it or its Subsidiaries by any obligation Person in connection with providing such services, and (contingent or otherwisee) if and to do so, except that, so long as the extent that no Default shall have occurred and be continuing at the time of any action described below then exists or would result therefrom:
, payment of monthly, quarterly and special distributions in amount not to exceed (ai) each Subsidiary may make Restricted Payments the amount by which the Borrower's cash on hand exceeds its current and anticipated needs for maintenance capital expenditures, operating expenses, debt service and a reasonable contingency reserve (as determined from time to any Person that owns Equity Interests time by the Borrower's management in such Subsidiary, ratably according to their respective holdings accordance with the Borrower's operating agreement) or (ii) after the occurrence of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interestsan IPO, and, with respect to its preferred Equity Intereststhe extent relevant, payable solely if greater than the amount set forth in additional Equity Interests clause (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymenti), the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount necessary to provide the Borrower's post-IPO managing member, taking into account such managing member's allocable portion of all Restricted Payments made pursuant any such distribution, and any master limited partnership formed for purposes of an IPO with any shortfall in such master limited partnership's available cash to this clause (d) does not exceed $50,000,000 in fund any fiscal year of Holdings (periodic minimum distributions to such master limited partnership's unitholders; it being understood acknowledged that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments borrowings under this Agreement to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)fund any permitted distribution.
Appears in 1 contract
Sources: Credit Agreement (Oge Energy Corp.)
Restricted Payments. Declare or makeNo Credit Party shall, directly or indirectly, nor shall it permit any of its Subsidiaries to make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payments 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 may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings the Subsidiaries of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its the holders of their Equity Interests from employees on a pro rata basis;
(b) so long as no Event of Default shall have occurred and be continuing, the Borrower may make repurchases of Equity Interests or payments in respect thereof not exceeding $1,000,000 in the aggregate during any fiscal year to officers, employees, consultants or members of management of the General Partner, the Borrower or its Subsidiaries (or their respective estates, heirs, family members, spouses or former spouses) upon the termination, death or disability of such Person or in connection with the vesting exercise of stock options or similar equity awardsincentives pursuant to management incentive plans;
(c) so long as no Event of Default shall have occurred and be continuing, (i) if the Fixed Charge Coverage Ratio of the Borrower is at least 1.75 to 1.00, the Borrower may make cash distributions to the holders of its Equity Interests in order an aggregate amount for all such cash distributions made in periods when the Fixed Charge Coverage Ratio of the Borrower is at least 1.75 to satisfy 1.00, not to exceed the related tax withholding obligationssum of, without duplication (A) Available Cash for the preceding fiscal quarter plus (B) the Incremental Funds and (ii) if the Fixed Charge Coverage Ratio of the Borrower is less than 1.75 to 1.00, the Borrower may make cash distributions to the holders of its Equity Interests in an aggregate amount for all such cash distributions made in periods when the Fixed Charge Coverage Ratio of the Borrower is less than 1.75 to 1.00, not to exceed the sum of (A) $175,000,000 plus (B) the Incremental Funds;
(d) so long as no Event of Default shall have occurred and be continuing, the Borrower may make any Restricted Payment out of the net cash proceeds of a substantially concurrent (a) capital contribution (other than from a Subsidiary of the Borrower) to the equity capital of the Borrower or (b) sale (other than to a Subsidiary of the Borrower) of, Equity Interests of the Borrower, with a sale being deemed substantially concurrent if such Restricted Payment occurs not more than 120 days after such sale; provided, however, that the amount of any such net cash proceeds that are utilized for any such Restricted Payment pursuant to this Section 6.9(d) will, to the extent included therein, be excluded or deducted from the calculation of Incremental Funds for purposes of Section 6.9(c);
(e) so long as no Event of Default shall have occurred and be continuing, the Borrower may make any Restricted Payment consisting of cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests of the Borrower; and
(f) Holdings so long as no Event of Default shall have occurred and be continuing, Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests).make any Restricted Payment in an aggregate amount for all such Restricted Payments made pursuant to this Section 6.9(e) not to exceed $20,000,000. -57- NY\6260051.12
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 Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower, the Subsidiary Guarantors and any other Person that 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) Holdings the Borrower and each Subsidiary may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(d) the Borrower may declare or pay Restricted Payments after the Closing Date in an aggregate amount not to exceed the sum of (i) $35,000,000 plus (ii) 50% of the cumulative Net Income (which shall not be less than $0) of the Borrower and its Subsidiaries since August 31, 2006 minus (iii) all amounts available to make Restricted Payments pursuant to this subsection (d) that have been invested pursuant to Section 7.02(g) and 7.02(h);
(e) the Borrower may make Restricted Payments for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower held by any future, present or former employee, director or consultant of the Borrower or any of the Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate amount of Restricted Payments made under this clause (e) shall not exceed in any calendar year of the Borrower $3,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years);
(f) the Borrower or any Subsidiary other than a Rail Services Business Subsidiary may make repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(g) the Borrower may make any Restricted Payment made in connection with the withholding of Equity Interests of the Borrower or other withholdings to allow any future, present or former employee, director or consultant of the Borrower or any Subsidiary to meet his or her tax withholding obligations that arise in connection with an award pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement;
(h) the Borrower may (i) issue non-cash rights to the extent distributed in connection with any stockholder rights plan of the Borrower and (ii) purchase, repurchase or otherwise acquire for value any non-cash rights distributed in connection with any stockholder rights plan of the Borrower;
(i) the Borrower and its Subsidiaries may pay cash in lieu of fractional Equity Interests as consideration and make payments to dissenting stockholders of a target required under applicable Law, in each case in connection with a Permitted Acquisition or other acquisition by the Borrower or a Subsidiary permitted hereunder;
(j) the Borrower or any Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof, (ii) receive or accept the return to the Borrower or any Restricted Subsidiary of Equity Interests of the Borrower or any Subsidiary constituting a portion of the purchase price consideration in settlement of indemnification claims and (iii) make payments in the form of Equity Interests of the Borrower in connection with the conversion of convertible Equity Interests permitted to be issued hereunder, provided that, in connection with any such conversion, the Borrower may make cash payments in lieu of fractional Equity Interests in connection with any such conversion;
(k) any Restricted Payment in exchange for, or out of the net cash proceeds of, a substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of the Borrower (other than Disqualified Equity InterestsStock); and
(l) the Borrower may declare or pay any Restricted Payments not prohibited by the Senior Indenture or the Convertible Note Indenture (to the extent such indentures are then in effect), in each case, to the extent such Restricted Payments are duly authorized and approved by the Administrative Agent or the board of directors of the applicable Loan Party that are disinterested directors.
Appears in 1 contract
Restricted Payments. Declare No Group Member shall 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 therefromin each case:
(a) each Subsidiary may make Restricted Payments Payments, directly or indirectly, to any Person that 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 madeBorrower;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its make dividend payments or other distributions payable solely in the common stock or other common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity InterestsPerson;
(c) Holdings Holdings, the Borrowers and each Subsidiary may make any purchase, redeem or otherwise acquire shares of its common stock or other Restricted Payments if immediately prior common Equity Interests or warrants or options to and after giving effect (including giving effect on a pro forma basis) to acquire any such Restricted Paymentshares in connection with customary employee or management agreements, the Consolidated Leverage Ratio is (x) less than 3.00 plans or arrangements, all in an aggregate amount not to 1.00 for each Measurement Period ending exceed $2,500,000 during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafterterm of this Agreement;
(d) Holdings may make repurchases or redemptions of its Equity Interests (i) in connection with the exercise of stock options or restricted stock awards if such Equity Interests represent all or a portion of the exercise price thereof or (ii) deemed to occur upon the withholding of a portion of such Equity Interests issued to directors, officers or employees of any Group Member under any stock option plan or other benefit plan or agreement for directors, officers and employees of any Group Member to cover withholding tax obligations of such Persons in respect of such issuance;
(e) Restricted Payments by Borrowers in an amount sufficient to permit Holdings or any other Tax Affiliate to pay consolidated, combined or unitary Tax liabilities of Holdings, its Subsidiaries and other Tax Affiliates relating to the business of Borrowers and Borrowers’ Subsidiaries, so long as Holdings or such other Tax Affiliate promptly applies the amount of such Restricted Payment for such purpose;
(f) Restricted Payments by Borrowers to the extent necessary to permit Holdings to pay administrative costs and expenses related to the business of Borrowers and their Subsidiaries, not to exceed $5,000,000 in any Fiscal Year, so long as Holdings promptly applies the amount of such Restricted Payment for such purpose; and
(g) other Restricted Payments by Holdings (and Restricted Payments by Borrowers to the extent necessary to permit Holdings to make such Restricted Payments, so long as Holdings promptly applies the aggregate amount of all such Restricted Payments made pursuant Payment for such purpose) in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests if the Payment Conditions are satisfied with respect thereto; provided, however, that in the case of Sections 8.06(c), 8.06(d) and 8.06(g), no Restricted Payment shall be made if a Default or Event of Default shall have occurred and be continuing (other than Disqualified Equity Interestsboth before or as a result of the making of such Restricted Payment).
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, 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary Borrower may declare and pay dividends with respect to its common 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, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments pursuant to Holdings so and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, and (d) after May 31, 2006, the Borrower may declare and pay dividends on its capital stock during any fiscal year up to an amount which, when added to all other dividends paid during such fiscal year, does not exceed fifty percent (50%) of cumulative net income of the Borrower for such fiscal year to such date, provided in all cases (a) through (d), inclusive, above that Holdings may repurchase its Equity Interests from employees no Default or Event of Default shall exist before or after giving effect to such Restricted Payment or be created as a result thereof and in connection with the vesting case of equity awardsclause (d), Availability shall not be less than $10,000,000 before and after giving effect to such Restricted Payment or be created as a result thereof. Notwithstanding the foregoing, in order the event the Leverage Ratio (Restricted Payments) is greater than 2.50 during any time prior to satisfy payment in full of the related tax withholding obligations; and
Term Loan, or in the event that the Leverage Ratio is greater than 2.50 at any time after payment in full of the Term Loan (fin each case, as reflected in the most recent financial statements delivered pursuant to Section 5.01(a) Holdings may purchaseor (b)), redeem then (i) no Subsidiary shall declare or pay dividends except dividends in its own capital stock and distributions to the Borrower, (ii) neither the Borrower nor any Subsidiary shall redeem, repurchase or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares or retire any of its Equity Interests capital stock, including treasury stock (other than Disqualified Equity Intereststhe issuance of treasury stock upon the exercise of employee, officer or director stock options), and (iii) the Borrower shall not be permitted to declare or pay any dividend; provided that if the Borrower fails to deliver the financial statements to the Administrative Agent at the time required pursuant to Section 5.01, then it shall be assumed that the Leverage Ratio (Restricted Payments) or the Leverage Ratio, as the case may be, as of the end of the applicable fiscal quarter was greater than 2.50 until five (5) Business Days after such financial statements are delivered.
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Restricted Payments. Declare or makeChipPAC shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment, ; provided that ChipPAC and its Subsidiaries may make the -------- following the Restricted Payments:
(i) any Subsidiary of ChipPAC or incur any obligation its Subsidiaries may pay dividends to ChipPAC or a Subsidiary of ChipPAC;
(contingent or otherwiseii) to do soCompany may make regularly scheduled payments (but, except thatas contemplated by subsection 2.4B(iii)(c) with respect to the proceeds of a Qualified Public Equity Offering, not prepayments) of principal and interest in 104 respect of the Subordinated Debt in accordance with the terms of, and subject to the subordination provision contained in, the Subordinated Debt Documents;
(iii) ChipPAC or any Subsidiary may make regularly scheduled principal and interest payments in respect of Permitted Seller Paper to the extent permitted under subsection 7.1(vii) in accordance with the terms of, and subject to the subordination provisions contained in, such Permitted Seller Paper;
(iv) so long as no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:, then ChipPAC and its Subsidiaries, collectively, may make cash Restricted Payments in an aggregate amount not to exceed $2,500,000 in any Fiscal Year, plus an ---- amount equal to any cash Restricted Payments permitted to be made during one or more preceding Fiscal Years under this clause (iv) but not made during such preceding Fiscal Year(s) in an aggregate amount not in excess of $10,000,000;
(av) each Subsidiary ChipPAC and its Subsidiaries, collectively, may make cash Restricted Payments in any Fiscal Year to the extent necessary to make repurchases of Securities (and options or warrants to purchase such Securities) of ChipPAC from employees, officers or directors upon termination (including by reason of death, disability or retirement) of such employees, officers or directors in an aggregate amount not to exceed $5,000,000 plus cash proceeds of any "key man" life insurance policies used to make such repurchases and the proceeds from any resales of such stock;
(vi) ChipPAC may make Restricted Payments in connection with repurchases of equity Securities, including Capital Stock, deemed to any Person that owns Equity Interests in occur upon the exercise of stock options if such Subsidiary, ratably according to their respective holdings Securities represent a portion of the type of Equity Interest in respect of which such Restricted Payment is being madeexercise price thereof;
(bvii) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower ChipPAC may make Restricted Payments (other than payments in cash in respect of the HEI Preferred Stock and the Intel Preferred Stock, in each case except to Holdings so that Holdings the extent expressly permitted hereby) contemplated by the Recapitalization Transactions;
(viii) So long as no Default or Event of Default has occurred and is continuing, ChipPAC may repurchase its Equity Interests from employees make Restricted Payments in respect of the Earnout;
(ix) So long as no Default or Event of Default has occurred and is continuing, ChipPAC may make Restricted Payments in connection with payments of cash dividends when due on and after five and one-half years from the vesting closing of equity awards, in order the Recapitalization Transactions on the HEI Preferred Stock pursuant to satisfy the related tax withholding obligations; andterms thereof;
(fx) Holdings So long as (a) no Default or Event of Default has occurred and is continuing and (b) the Leverage Ratio is less than or equal to 2.00:1.00, ChipPAC may purchasemake Restricted Payments in connection with (i) any mandatory or voluntary redemption of the Intel Preferred Stock and (ii) any required payment of accrued and unpaid dividends on the Intel Preferred Stock at any time such stock is converted into Capital Stock of ChipPAC, both pursuant to the terms of the Intel Preferred Stock; and 105
(xi) ChipPAC may redeem the HEI Preferred Stock and or otherwise acquire Equity Interests issued the Intel Preferred Stock to the extent contemplated by it subsection 2.4B(iii)(c) with the proceeds received from the substantially concurrent issue of new shares of its a Qualified Public Equity Interests (other than Disqualified Equity Interests)Offering.
Appears in 1 contract
Sources: Credit Agreement (Chippac LTD)
Restricted Payments. Declare or makeNo Credit Party shall, directly or indirectly, nor shall it permit any of its Subsidiaries to make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payments 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 may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings the Subsidiaries of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings the Borrower or any other Credit Party that is a Subsidiary of the Borrower;
(b) so that Holdings long as no Event of Default shall have occurred and be continuing, repurchases of Equity Interests or payments in respect thereof not exceeding $500,000 in the aggregate during any fiscal year to officers, employees, consultants or members of management of the General Partner, the Borrower or its Subsidiaries (or their respective estates, heirs, family members, spouses or former spouses) upon the termination, death or disability of such Person or in connection with the exercise of stock options or similar equity incentives pursuant to management incentive plans;
(c) so long as no Event of Default shall have occurred and be continuing, the Borrower may repurchase make cash distributions to the holders of its Equity Interests from employees “Operating Surplus” (as such term is defined in connection with the vesting Partnership Agreement) calculated on a cumulative basis from August 21, 2012 through the date of equity awards, in order to satisfy the related tax withholding obligationssuch distribution; and
(fd) Holdings so long as no Event of Default shall have occurred and be continuing, Augusta may purchase, redeem or otherwise acquire make cash distributions to Hi-Crush Proppants Entities in respect of such Hi-Crush Proppants Entities’ shares of common Equity Interests issued by it with of Augusta; provided that (i) the proceeds received aggregate amount of such distributions in any fiscal year shall not exceed such Hi-Crush Proppants Entities’ ratable share of aggregate cash flow from the substantially concurrent issue operations of new shares Augusta and (ii) each such distribution reflects such Hi-Crush Proppants Entities’ ratable share of its a cash distribution made on a pro rata basis to all holders of Equity Interests (other than Disqualified Equity Interests)of Augusta.
Appears in 1 contract
Restricted Payments. Declare Except as set forth on Schedule 6.11 or makeotherwise permitted under Section 6.16, directly said Borrower will not, and will not permit any of its Subsidiaries to, (i) declare or indirectlypay any dividend or other distribution on any shares of said Borrower's or such Subsidiary's capital stock (except dividends payable solely in shares of said Borrower's or such Subsidiary's capital stock or dividends payable to a Borrower by another Borrower or payable by a Subsidiary which is not a Borrower to another Subsidiary which is not a Borrower or to a Borrower), (ii) make any Restricted Paymentpayment on account of the purchase, redemption, retirement or incur acquisition of (A) any obligation shares of said Borrower's or such Subsidiary's capital stock (contingent except shares acquired upon the conversion thereof into other shares of said Borrower's or otherwisesuch Subsidiary's capital stock) or (B) any option, warrant or other right to do soacquire shares of said Borrower's or such Subsidiary's capital stock, except thatother than repurchases of a Borrower's or a Subsidiary's capital stock not to exceed $250,000.00 in the aggregate in any fiscal year for all Borrowers and Subsidiaries considered as a whole. Notwithstanding anything to the contrary herein, the Borrowers and their Subsidiaries shall be permitted to repurchase, redeem or retire the Class Action Notes (i) for cash, 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 may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Paymentthereto, the Consolidated Leverage Ratio is Borrowers shall be in compliance with Article V, and (xii) less than 3.00 to 1.00 for each Measurement Period ending during stock of the period commencing on the Effective Date through September 30Parent, 2023, (y) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make at any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)time.
Appears in 1 contract
Restricted Payments. Declare or makeNone of the Borrowers will, directly or indirectlynor will permit any of its Subsidiaries to, make any Restricted PaymentPayments, other than:
(a) Distributions by any Borrower to any other Borrower or incur by any obligation Subsidiary of a Borrower to such Borrower;
(contingent b) (i) payments by the Borrowers to the Parent to enable the Parent to pay costs and expenses incurred in the ordinary course of business as a holding company, including, without limitation, payment of administrative costs and expenses and (ii) payments in respect of the Management Fees and reimbursement obligations and indemnification obligations arising from activities in the ordinary course of the Borrowers’ business and payable under the Management Agreements, provided that (A) the aggregate amount of all such amounts payable in any fiscal year of the Borrowers under clauses (i) and (ii) of this subparagraph (b) shall not exceed $2,440,000 plus reasonable board fees payable to members of the board of directors of the Parent, the Borrowers or otherwiseMS LLC who are not part of the management of the Borrowers, the Parent or MS LLC or affiliated with the Sponsors and reasonable out of pocket expenses incurred by members of the board of directors or observers of the Parent, the Borrowers or MS LLC; (B) the annual Management Fees shall be payable in equal quarterly installments, (C) with respect to do sothe payment of Management Fees, except thatno Default or Event of Default then exists or would result after the making of such payment, (D) the Administrative Agent shall have received a Compliance Certificate for the Reference Period most recently ended, (E) the Borrowers shall not pay any Management Fees prior to the commencement of the fiscal quarter to which such Management Fees relate, and (F) notwithstanding clause (A) above, the Borrower may pay Management Fees which were not paid in respect of any prior fiscal quarter so long as (1) no Default or Event of Default then exists or would result after the making of such payment and (2) the Administrative Agent shall have received a Compliance Certificate for the Reference Period most recently ended at least three (3) Business Days prior to the payment of such Management Fees;
(c) payments by the Borrowers to the Parent to permit the Parent to pay federal and state income taxes, franchise taxes and other similar licensing expenses incurred in the ordinary course of business which are owed or payable by the Parent; and
(d) so long as no Event of Default is then continuing, Distributions in an amount not to exceed $500,000 per annum and $2,000,000 in the aggregate during the period from the Closing Date through to the Maturity Date to be used to repurchase or otherwise redeem Equity Interests of MS LLC from former employees of MS LLC, the Borrowers or their Subsidiaries pursuant to the terms of the Equity Documents or other employee compensation plans of MS LLC, the Borrowers and their Subsidiaries; provided that the portion of such Distributions equal to cash payments received by MS LLC, any Borrower or any of their Subsidiaries from the subsequent sale of such repurchased or redeemed capital stock for cash to any employee of MS LLC, the Borrowers and their Subsidiaries at the commencement of such Person’s employment shall not be deemed to be a Distribution for purposes of this §10.4(d); and
(e) Distributions by any Borrower to the Parent solely for the purpose of paying interest on Subordinated Debt incurred by the Parent so long as (i) no Default or Event of Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect to any such Distribution, (including giving effect on ii) the Borrowers shall have delivered to the Administrative Agent a pro forma basis) Compliance Certificate demonstrating compliance with the financial covenants set forth in §11 after giving effect to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023Distribution, (yiii) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made such Distributions, together with any interest paid by the Borrowers on Subordinated Debt incurred by the Borrowers pursuant to this clause (d) does §10.1(c), shall not exceed $50,000,000 in during any fiscal year that amount equal to interest which has accrued on outstanding Subordinated Debt during such year at a per annum rate equal to 13%, and (iv) such Distributions are applied by the Parent solely to pay such interest expense not earlier than the regularly scheduled payment date therefor. In furtherance of Holdings (it being understood that any “net down payments” made pursuant to clause (e) belowthe foregoing, the Borrowers shall not count towards make any Restricted Payments, and the Parent shall not accept any Restricted Payments, if such $50,000,000);
payments would be used to redeem or prepay any (ei) Convertible Preferred Stock or (ii) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with principal amount of any Indebtedness of the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)Parent.
Appears in 1 contract
Sources: Revolving Credit Agreement (McCormick & Schmick Holdings, L.L.C.)
Restricted Payments. Declare The Borrower shall not, and shall not cause or makepermit any Restricted Subsidiary to, directly or indirectly, any make a Restricted Payment, except:
(a) the Closing Date Distribution;
(b) payments of cash, dividends, distributions, advances or incur other Restricted Payments by the Borrower or any obligation Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon (contingent i) the exercise of options or otherwisewarrants or (ii) the conversion or exchange of Equity Interests of any such Person;
(c) the repurchase, redemption or other acquisition or retirement for value of Equity Interests of the Borrower or any of the Restricted Subsidiaries held by any current or former officer, director or employee of the Borrower or any of the Restricted Subsidiaries (to do sothe extent granted to such Person in respect of performance of services for the Borrower or any of the Restricted Subsidiaries) (or their respective estates, except thatheirs, family members, spouses, former spouses or beneficiaries under their estates or other permitted transferees), pursuant to the terms of any equity subscription agreement, stock option agreement, shareholders’ agreement, compensation agreement or arrangement or similar agreement; provided that the aggregate amount of such acquisitions or retirements (excluding amounts representing cancellation of Indebtedness) shall not exceed $2,000,000 in any calendar year (with any portion of such $2,000,000 amount that is unused in any calendar year to be carried forward to successive calendar years and added to such amount, provided that the amount carried forward shall not exceed $6,000,000 at any time); provided further that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower after the Closing Date;
(d) the Borrower and each of the Restricted Subsidiaries may purchase, redeem or otherwise acquire its Equity Interests or make other Restricted Payments with the net cash proceeds received by the Borrower from the substantially concurrent issuance and sale of common stock of the Borrower;
(e) the repurchase of Equity Interests deemed to occur upon the exercise of stock or other equity options to the extent such Equity Interests represent a portion of the exercise price of those stock or other equity options and any repurchase or other acquisition of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants, incentives or other rights to acquire Equity Interests;
(f) prepayment of any Specified Junior Obligations with Refinancing Indebtedness thereof;
(g) repurchases of Specified Junior Obligations of the Borrower or any Restricted Subsidiary at a purchase price not greater than 100% of the principal amount of such Specified Junior Obligations in the event of an asset disposition, in each case plus accrued and unpaid interest thereon, to the extent required by the terms of such Specified Junior Obligations, but only if the Borrower has complied with and fully satisfied its obligations in accordance with Sections 5.7.2 [Dispositions] and 8.2.7 [Dispositions];
(h) so long as no Potential Default or Event of Default shall have occurred and be continuing or shall result therefrom, Restricted Payments in an aggregate amount up to the sum of (x) $25,000,000 minus any Investments made pursuant to Section 8.2.4(r)(x) [Loans and Investments], and (y) the then Cumulative Credit; provided that, in the case of clause (y) of this clause (h), the Total Net Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be greater than 2.00:1.00 and the Borrower shall deliver to each Administrative Agent prior to the making of such Restricted Payment an Officer’s Certificate certifying compliance with the requirements of this clause (h) and setting forth calculations in reasonable detail showing such compliance;
(i) so long as no Potential Default or Event of Default shall have occurred and be continuing or shall result therefrom, any prepayment, redemption or repurchase of the Revenue Bonds; provided that (x) the Total Net Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be greater than 1.50:1.00, (y) at such time, after giving effect to such prepayment, redemption or repurchase, Total Liquidity shall be at least $275,000,000 and (z) the Borrower shall deliver to each Administrative Agent prior to the making of such prepayment, redemption or repurchase an Officer’s Certificate certifying compliance with the requirements of this clause (i) and setting forth calculations in reasonable detail showing such compliance; and
(j) purchases or other acquisitions or retirements for value of any Equity Interests of the Borrower in an aggregate amount not to exceed $10,000,000 in any calendar year (commencing with the calendar year ending December 31, 2018); provided that at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary may declare and pay dividends with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023thereto, (y1) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 no Event of Default or Potential Default shall exist and (z2) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this clause (d) does not exceed Total Liquidity shall be at least $50,000,000 in any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000);
(e) the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligations; and
(f) Holdings may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests)275,000,000.
Appears in 1 contract
Restricted Payments. Declare The Borrower shall not permit, nor shall it permit any Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(ai) each Subsidiary may make Restricted Payments to any Person that 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) Holdings and each Subsidiary The Borrower may declare and pay dividends with respect or make cash distributions to its common Equity Interests payable solely equity holders in additional shares an aggregate amount not to exceed the greater of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional Equity Interests (other than Disqualified Equity Interests) of such preferred Equity Interests or in shares of its common Equity Interests;
(c) Holdings may make any other Restricted Payments if immediately prior to and after giving effect (including giving effect on a pro forma basis) to any such Restricted Payment, the Consolidated Leverage Ratio is (x) less than 3.00 to 1.00 ninety-five percent (95%) of the Borrower’s Adjusted FFO for each Measurement Period ending during the period commencing on the Effective Date through September 30Rolling Period, 2023, or (y) less than 2.75 the amount necessary for the Borrower to 1.00 for 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 Measurement Period ending case on the Borrower; provided, that, in either case, (A) during the period commencing October 1continuance of an Event of Default, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter;
(d) Holdings may make any other Restricted Payments, so long as the aggregate amount of all Restricted Payments made pursuant to this 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, Borrower shall not make any cash distributions;
(b) each Subsidiary may make Restricted Payments ratably to the holders of its Equity Interests;
(c) the Borrower or any Guarantor may declare and make dividend payments or other distributions payable solely in the common equity interests or other equity interests of such entity including (i) “cashless exercises” of options granted under any share option plan adopted by such entity, (ii) distributions of rights or 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 additional shares of its equity interests;
(d) does not exceed $50,000,000 the Borrower and each Guarantor may 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 the Borrower or any fiscal year of Holdings (it being understood that any “net down payments” made pursuant to clause (e) below, shall not count towards such $50,000,000)Subsidiary;
(e) so long as no Change of Control results therefrom, the Borrower and each Subsidiary may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests from employees in connection with the vesting implementation of equity awardsor pursuant to any retirement, health, stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of compensation;
(f) 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 Borrower to make payments in order connection with share purchase programs, to satisfy the related tax withholding obligationsextent not otherwise prohibited by the terms of this Agreement; and
(fg) Holdings The Borrower may purchase, redeem exercise any redemption or otherwise acquire Equity Interests issued by it conversion rights with the proceeds received from the substantially concurrent issue of new shares of respect to its Equity Interests (other than Disqualified Equity Interests)in accordance with the terms of the governing documents setting out any such rights.
Appears in 1 contract
Restricted Payments. Declare Neither the Company nor any of the Restricted Subsidiaries shall 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 therefromexcept:
(a) each Restricted Subsidiary may make Restricted Payments to the Company, and other Restricted Subsidiaries of the Company (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Company and any Person that owns other Restricted Subsidiary and to each other owner of Equity Interests in of such Subsidiary, ratably according to Restricted Subsidiary based on their respective holdings relative ownership interests of the type relevant class of Equity Interest in respect of which such Restricted Payment is being madeInterests);
(b) Holdings the Company and each Restricted Subsidiary may declare and pay dividends with respect to its common Equity Interests make Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(i) the Spin-Off Transaction and Restricted Payments in connection therewith, in each case, as set forth in the Transaction Agreements and the Amendment No. 7 to Form 10, filed with the Securities and Exchange Commission on November 30, 2016, in each case, including any amendments, supplements, waivers or modifications in a manner not materially adverse to the Lenders when taken as whole, as compared to such Transaction Agreement or Form 10 as in effect immediately prior to such amendment, supplement, waiver or modification) and (ii) a distribution, on or around the Closing Date, by the Company to its direct or indirect parents of (A) the cash proceeds from the Loans and additional shares borrowings under the Timeshare Facility and (B) an additional amount of cash to the extent the balance of available cash (including restricted cash) as of the date of the Spin-Off Transaction exceeds $125,000,000;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Company and its Restricted Subsidiaries may make Restricted Payments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 3.00:1.00;
(e) to the extent constituting Restricted Payments, the Company and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 7.02 (other than 7.02(e) and (m)), 7.04 or 7.08 (other than Sections 7.08(e) or 7.08(j));
(f) repurchases of Equity Interests in the Company (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Company deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(g) the Company and each Restricted Subsidiary may pay (or make Restricted Payments to allow the Company or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Company or any other such direct or indirect parent thereof) from any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent of such Restricted Subsidiary) or any of its common Equity InterestsSubsidiaries upon the death, anddisability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with respect any employee, manager, director, officer or consultant of such Restricted Subsidiary (or the Company or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to its preferred Equity Intereststhis clause (g) shall not exceed $25,000,000 in any calendar year (with unused 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, payable solely further, that such amount in additional any calendar year may be increased by an amount not to exceed:
(i) to the extent contributed to the Company, the Net Proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of any of the Company’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date, to the extent Net Proceeds from the sale of such preferred Equity Interests have been Not Otherwise Applied; plus
(ii) the Net Proceeds of key man life insurance policies received by the Company or its Restricted Subsidiaries; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in shares clause (i) and (ii) of its common Equity Intereststhis Section 7.06(g);
(ch) Holdings the Company may make any other Restricted Payments if immediately prior in an aggregate amount not to and after giving effect (including giving effect on a pro forma basis) exceed, when combined with prepayment of Indebtedness pursuant to any such Restricted PaymentSection 7.13(a)(iv), the Consolidated Leverage Ratio is greater of (xa) less than 3.00 to 1.00 for each Measurement Period ending during the period commencing on the Effective Date through September 30, 2023, $75,000,000 and (yb) less than 2.75 to 1.00 for each Measurement Period ending during the period commencing October 1, 2023 through December 31, 2024 or (z) less than 2.50 to 1.00 for each Measurement Period ending thereafter3.00% of Total Assets;
(di) Holdings the Company may make Restricted Payments to any direct or indirect parent of the Company:
(i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Company and its Restricted PaymentsSubsidiaries and, so long Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Company and its Restricted Subsidiaries;
(ii) the proceeds of which shall be used by such parent to pay franchise Taxes and other fees, Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii) for any taxable period ending after the Closing Date (A) in which the Company and/or any of its Subsidiaries is a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”) of which a direct or indirect parent of Company is the common parent or (B) in which the Company is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Company and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such Taxes that the Company and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Company as the aggregate amount corporate common parent of all Restricted Payments made such stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (diii) does not exceed $50,000,000 in with respect to any fiscal year Taxes of Holdings any Unrestricted Subsidiary shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Company or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(it being understood iv) to finance any Investment that any “net down payments” would be permitted to be made pursuant to clause Section 7.02 if such parent were subject to such Section; provided that (eA) belowsuch Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Company or the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Company or its Restricted Subsidiaries in order to consummate such Permitted Acquisition or Investment, in each case, in accordance with the requirements of Section 6.11, (C) such parent company and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement and (D) such Investment shall not count towards be deemed to be made by the Company or such $50,000,000Restricted Subsidiary pursuant to Section 7.02 (other than pursuant to Section 7.02(aa) or 7.02(p));
(ev) the Borrower may proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(vi) the proceeds of which shall be used by Holdings to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings so (or any direct or indirect parent thereof) that Holdings may repurchase is directly attributable to the operations of the Company and its Equity Interests from employees in connection with the vesting of equity awards, in order to satisfy the related tax withholding obligationsRestricted Subsidiaries; and
(fvii) Holdings may purchaseamounts payable pursuant to (x) [reserved] or (y) any of the Transaction Agreements (including, redeem in each case, any amendment thereto or otherwise acquire replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the board of directors of the Company to the Lenders when taken as a whole, as compared to the applicable agreement as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Company or its Subsidiaries;
(j) payments made or expected to be made by the Company or any of the Restricted Subsidiaries in respect of required withholding or similar Taxes payable upon exercise of Equity Interests issued by it any future, present or former employee, director, manager or consultant of the Company or any Restricted Subsidiaries and any repurchases of Equity Interests deemed to occur upon the exercise of stock options;
(k) the Company or any Restricted Subsidiary may (i) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(l) (i) any Restricted Payment by the Company or any other direct or indirect parent of the Company to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed the sum of (A) up to 6% per annum of the net proceeds received by (or contributed to) the Company and its Restricted Subsidiaries from a Qualified IPO (and other than a public sale constituting an Excluded Contribution) and (B) Restricted Payments in an aggregate amount per annum not to exceed 5.00% of Market Capitalization;
(m) distributions or payments of Securitization Fees;
(n) [Reserved];
(o) the substantially concurrent issue distribution, by dividend or otherwise, of new shares of its Equity Interests of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries), or Indebtedness owed to the Company or a Restricted Subsidiary by an Unrestricted Subsidiary (other than Disqualified Equity InterestsUnrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents);
(p) Restricted Payments that are made (i) in an amount equal to the amount of Excluded Contributions previously received since the Closing Date (less any Investments made in reliance on Section 7.02(aa)) or (ii) without duplication with clause (i), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions; and
(q) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or the 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 Agreement.
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