Restricted Payments. Make any Restricted Payments, except as follows: (a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors; (b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan; (c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement (d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 3 contracts
Sources: Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp)
Restricted Payments. Make 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 PaymentsPayment, except as follows:
long as no Event of Default has occurred and is continuing or would result therefrom, (a) WPZ may make Restricted Payments of Available Cash (ias defined in the Partnership Agreement) Borrowers with respect to any Quarter (as defined in the Partnership Agreement), (b) each of NWP and TGPL and their respective Subsidiaries may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or make Restricted Payments to WPZ and its Subsidiaries, (iic) a Subsidiary WPZ and its Subsidiaries may pay dividends make payments or other distributions to officers, directors or employees with respect to the exercise by any Borrower or to another Subsidiary; provided that the total such Persons of all such dividends options, warrants or other distributions rights to Subsidiaries which are not Guarantors shall not exceed $300,000 over acquire Equity Interests in WPZ or such Subsidiary issued pursuant to an employment, equity award, equity option or equity appreciation agreement or plans entered into by WPZ or such Subsidiary in the life ordinary course of this business, (d) WPZ may reimburse the General Partner for expenses pursuant to the Partnership Agreement, (e) TGPL and provided further NWP and their Subsidiaries may distribute cash to WPZ in connection with their participation in WPZ’s cash management program and (f) any Person may be permitted to make any Restricted Payment required to effectuate a MLP Combination; provided, that even if (1) a Default or an Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00continuing, no such Subsidiary of the Borrower shall be prohibited from upstreaming dividends or other distributions shall be paid by any Guarantor payments to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends the Borrower or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of the Borrower or making, in the case of any Borrower Subsidiary that is not wholly-owned (directly or indirectly) by the Borrower, dividends or payments, as the case may declare or pay any ratable dividends be, to the other owners of Equity Interests in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determinationsuch Subsidiary; and provided, further, that, any dividends or payments by any such Subsidiary that is not wholly-owned (iidirectly or indirectly) when combined with by the Borrower to the Borrower shall be not less than an amount equal to (x) WPZ’s direct or indirect percentage ownership of Equity Interests in such Subsidiary times (y) the amount of all purchases such dividends and payments made to all owners of Equity Securities made under Section 7.06(e), the total of all Interests in such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerSubsidiary.
Appears in 3 contracts
Sources: Credit Agreement (Williams Partners L.P.), Credit Agreement (Williams Partners L.P.), Credit Agreement (Williams Partners L.P.)
Restricted Payments. Make any Restricted Payments, except as follows:
(a) Subject to paragraph (b) below, no Offshore Obligor shall (and each Offshore Obligor shall ensure that no other member of the Offshore Group will):
(i) Borrowers may declare, make or pay dividends any dividend or other distributions payable solely distribution in shares of capital stock respect of any Borrower or any Subsidiary or of its shares;
(ii) a Subsidiary may pay dividends or other distributions alter any rights attaching to any Borrower or to another Subsidiary; provided that its issued shares as at the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life date of this AgreementAgreement in a manner which might reasonably be expected to adversely affect the interests of the Lender;
(iii) redeem, and repurchase, defease, retire or repay or redeem any of its share capital or resolve to do so; or
(iv) pay interest, commission or fees on, or repay, prepay, redeem, defease or otherwise discharge any loan provided further that if by the Onshore Parent Guarantor or an Affiliate of the Onshore Parent Guarantor;
(1v) a Default or Event of Default shall have occurred and be continuing or without limiting paragraphs (2i) to (iv) above, pay any intercompany payables in connection with the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;Joyful Intercompany Advances.
(b) No Offshore Obligor shall (and each Offshore Obligor shall ensure no other member of the Offshore Group will) make any Borrower may distribute rights distribution on, or redeem or otherwise discharge any Junior Liabilities other than payment of the Preferred Fixed Dividend (as defined in the Junior Investment Agreement) under the Junior Investment Documents provided to the Lender pursuant to a shareholder rights plan or redeem such rightsSchedule 1 (Conditions Precedent), provided that such redemption is in accordance with payment shall not exceed US$11,500,000 per annum or such other amount as the terms of such shareholder rights plan;Lender may agree (“Junior Permitted Payment”).
(c) No Offshore Obligor shall (and each Offshore Obligor shall ensure no other member of the Offshore Group will) pay any Borrower may make Restricted Payments in connection with amount to, or repay, prepay, redeem, defease or otherwise discharge any liabilities owed to Fullgoal SPC (for and on behalf of Fullgoal SP) other than any payment made by Joyful Wellness to Fullgoal SPC (for and on behalf of Fullgoal SP) pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as terms of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerFullgoal Notes.
Appears in 3 contracts
Sources: Facility Agreement, Facility Agreement (Pacific Alliance Group LTD), Facility Agreement (Sun Wise (UK) Co., LTD)
Restricted Payments. Make Directly or indirectly, declare, order, pay or make or set apart any sum for any Restricted Payment except that Borrower may make the following Restricted Payments, except as follows:
(a) (i) Borrowers Any Subsidiary of Borrower may declare and pay dividends to Borrower or a Subsidiary Guarantor;
(b) Holdings, Borrower or any Subsidiary of Borrower may declare and make dividend payments or other distributions payable solely in shares of capital its common stock of or other equity securities;
(c) So long as no Default has occurred and is continuing or could reasonably be expected to result therefrom Borrower may make distributions to Holdings in an amount not to exceed $250,000 per Fiscal Year and $1,000,000 in the aggregate, which are distributed by Holdings to ZILLC to permit ZILLC to redeem from management equityholders, membership interests, warrants or options to acquire any such membership interests;
(d) In the event Borrower or any Subsidiary Guarantor files a consolidated income tax return with Holdings, Borrower or (ii) a such Subsidiary Guarantor may pay dividends or other make distributions to any Borrower or Holdings to another Subsidiarypermit Holdings to pay federal and state income taxes then due and owing and franchise taxes and other similar licensing expenses incurred in the ordinary course of business; provided that the total amount of all such dividends or other distributions to Subsidiaries which are not Guarantors distribution shall not be greater, nor the receipt by Borrower or such Subsidiary Guarantor, as applicable, of tax benefits less, than they would have been had Borrower or such Subsidiary Guarantor not filed a consolidated return with Holdings;
(e) Borrower may pay the Management Fee; provided that the amount of the Management Fee paid in respect of any Fiscal Year does not exceed $300,000 over the life lesser of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2i) the Leverage Ratio amount of Management Fee due and payable pursuant to the Management Agreement for such Fiscal Year and (determined on a pro forma basis after giving effect ii) Management Fee Limitation Amount applicable to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantorthat Fiscal Year; provided, however, that this clause if Borrower is not permitted to pay the full amount of the Management Fee (athe “Actual Fee”) shall due pursuant to the Management Agreement in any Fiscal Year as a result of the applicable Management Fee Limitation Amount, the amount of the Actual Fee not restrict dividends or other distributions from Subsidiaries which are not Guarantors paid in respect of such Fiscal Year (the “Accrued Fee”) may be carried forward to other Subsidiaries which are not Guarantorssubsequent Fiscal Years and paid to the extent that the Actual Fee with respect to such subsequent Fiscal Year is less than the Management Fee Limitation Amount applicable to such subsequent Fiscal Year;
(bf) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its the following additional distributions and payments:
(i) Employee Benefits Plans Borrower may make distributions to permit Holdings to pay, or in connection with the employmentto reimburse Holdings for, termination or compensation of its service providersgeneral administrative costs, employees, officers or directorsoverhead expenses, and (ii) other expenses incurred by Holdings in the ordinary course of business and related to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwiseBorrower, in each case, as and when due and payable; provided, however, that with respect amounts paid pursuant to this clause (c)(iif)(i) above, such Restricted Payments may shall not exceed $1,000,000 50,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementFiscal Year;
(dii) any Subsidiary of any Borrower may declare or pay reimbursement amounts due pursuant to Section 2.1 of the Management Agreement; provided that the amount of such payments pursuant to this clause (f)(ii) shall not exceed $75,000 in any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or Fiscal Year, and
(iii) Borrower may make distributions to shareholders Holdings and/or ZILLC to pay directors’ and board observers’ fees and expenses not otherwise permitted hereunder, reimbursable pursuant to the Management Agreement; provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions payments pursuant to this clause (f)(iii) shall not exceed $65,000 in any Fiscal Year; and
(g) Borrower may make distributions or otherwise pay the sum of Consulting Fees; provided that such distributions and payments pursuant to this clause (g) shall not exceed $100,000 in any Fiscal Year in the aggregate over the life case of this Agreement; provided, further, that the provisions of this clause ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (fwhich amount shall include all direct and indirect compensation payable to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 3 contracts
Sources: Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.)
Restricted Payments. Make any No Obligor Party shall make payments which are Restricted Payments, except as followsthat:
(a) (i) Borrowers The Obligor Parties may pay dividends or make payments and other distributions payable as expressly permitted under Section 5.13 and Article III of the Depositary Agreement; provided that, solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions with respect to any Borrower or Restricted Payment to another Subsidiary; provided that be made on the total Term Conversion Date pursuant to the first proviso of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over Section 3.10(b) of the life Depositary Agreement and Sections 3.8(c)(i) and 3.9(b)(iv) of this the Depositary Agreement, no Revolving Loans are outstanding as of the date of such Restricted Payment before and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;Restricted Payment.
(b) any The Borrower may distribute rights reimburse Drawstop Equity Contributions pursuant to a shareholder rights plan or redeem such rights, Section 4.03(d); provided that the aggregate remaining amount of all stated amounts, deposited amounts and amounts secured thereby, as applicable, of any Equity Credit Support to whom such redemption reimbursement is intended to be made shall be equal to not less than the “Unfunded Commitment” (as defined in accordance with the terms Equity Contribution Agreement (after giving pro forma effect to the reimbursement of such shareholder rights plan;Drawstop Equity Contribution)).
(c) The Borrower may reimburse the Expansion Equity Contributions pursuant to Section 4.03(e); provided that the aggregate remaining amount of all stated amounts, deposited amounts and amounts secured thereby, as applicable, of any Equity Credit Support to whom such reimbursement is intended to be made shall be equal to not less than the “Unfunded Commitment” (as defined in the Equity Contribution Agreement (after giving pro forma effect to the reimbursement of such Expansion Equity Contribution)).
(d) Restricted Payments may be made with the proceeds of amounts on deposit in or credited to any Excluded Commodity Account, in an aggregate amount not to exceed at any time (i) the amount of Equity Commodity Contributions made prior to such time less (ii) any amounts that have been previously transferred as a Restricted Payment pursuant to this clause (d).
(e) Any Loan Party may make Restricted Payments to any other Loan Party.
(f) Any Obligor Party may make payments to any Affiliate of the Obligor Parties under the Management Services Agreement (including the Management Fee), any Permitted O&M Agreement, any Permitted Energy Management Agreement or any other Project Contract entered into in accordance with this Agreement.
(g) On or after the first Quarterly Payment Date following the Term Conversion Date, so long as the Distribution Conditions are satisfied as of the date of any such Restricted Payment, the Borrower may make Restricted Payments to Sponsor, Holdings or its designee with amounts on deposit in, or credited to, the Distribution Suspense Account in connection accordance with or pursuant Section 3.10 of the Depositary Agreement.
(h) Prior to any the Term Conversion Date and so long as no Event of its Default has occurred and is continuing, the Borrower may make the following withdrawals and transfers from the Construction Account: (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, for Permitted Tax Distributions and (ii) for general and administrative costs of the Projects and the Loan Parties directly incurred by Holdings and Sponsor, and other corporate overhead expenses in an aggregate amount not to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 250,000 in any fiscal year of the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunderBorrower, provided that in each case Borrower has certified that the Loan Parties have sufficient funds (taking into account the available Equity Commitment, amounts on deposit in the Construction Account and the Local Accounts (other than for payment of O&M Costs), and remaining availability under the Construction Facility) to achieve Term Conversion.
(i) the aggregate amount paid or distributed Pursuant to and in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined accordance with the amount of all purchases of Equity Securities made under Section 7.06(e2.11(b)(iv), the total of all Borrower may distribute the LeConte Target Disposition Prepayment Amount to Holdings, and Holdings may distribute such dividends, purchases or redemptions shall not exceed amount to LeConte.
(j) The Borrower may distribute payments to be made to LeConte pursuant to the sum of $100,000 SP-15 Payment Assignment Agreement and any payments made by Exelon under the Exelon Confirmation listed in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f)a) of the definition thereof to Holdings, shall not restrict any Subsidiary from declaring or paying dividends and Holdings may distribute such amount to any Borrower or to any wholly owned Subsidiary of BorrowerLeConte.
Appears in 3 contracts
Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Restricted Payments. Make The Borrower shall not declare or make, or agree to pay for or make, directly or indirectly, any Restricted PaymentsPayment, or permit any of the Restricted Subsidiaries so to do, except as follows:
(a) that (i) Borrowers the Borrower or any of the Restricted Subsidiaries may declare and pay dividends or other distributions with respect to its equity securities payable solely in additional shares of capital stock such equity securities, (ii) any of any the Restricted Subsidiaries may declare and pay dividends with respect to its equity securities to the Borrower or any Subsidiary or of the other Restricted Subsidiaries, (iiiii) a Subsidiary the Borrower may make, and agree to make, payments on account of liabilities described in clause (vi) of the definition of “Indebtedness” contained herein and permitted by Section 7.1, (iv) the Borrower may declare and pay dividends or other distributions with respect to any Borrower or to another Subsidiary; provided that its preferred equity securities, (v) if at the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, time thereof and provided further that if (1) a immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing continuing, the Borrower may declare and pay, and agree to declare and pay, directly or indirectly, Restricted Payments in cash to its common shareholders, (2vi) the Leverage Ratio Borrower or any of the Restricted Subsidiaries may make, and agree to make, payments on account of subordinated Indebtedness described in clause (determined on a pro forma basis after giving effect to iii) of the definition of “Restricted Payments” and permitted by the subordination terms applicable thereto and (vii) the Borrower may repurchase common Equity Interests or common stock options from present or former officers, directors or employees (or heirs of, estates of or trusts formed such transactionpersons) is greater than 2.00 to 1.00, no such dividends of the Borrower or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantorupon the death, disability, retirement or termination of employment of such officer, director or employee or pursuant to the terms of any stock option plan or like agreement; provided, however, that the aggregate amount of payments under this clause (avii) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed 2,000,000 in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as fiscal year of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 3 contracts
Sources: Loan Agreement (Cleco Corp), Credit Agreement (Cleco Power LLC), Credit Agreement (Cleco Corp)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except that, so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have occurred and be continuing prior to or (2) the Leverage Ratio (determined on a pro forma basis immediately after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends any action described below or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause would result therefrom:
(a) shall not restrict dividends each Subsidiary of Parent may make Restricted Payments to any other Subsidiary or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsParent;
(b) any Borrower the Parent and each Subsidiary thereof may distribute rights pursuant to a shareholder rights plan declare and make dividend payments or redeem such rights, provided that such redemption is other distributions payable solely in accordance with the terms common stock or other common Equity Interests of such shareholder rights planPerson;
(c) the Parent may pay cash dividends, payments and distributions in an amount sufficient to allow Holdings and Intermediate Holdco to pay expenses (other than taxes) incurred in the ordinary course of business, provided that, if Holdings or Intermediate Holdco shall own any Borrower material assets (other than the Equity Interests of Intermediate Holdco or the Parent or other assets relating to the Equity Interests of such Intermediate Holdco or the Parent), such cash dividends, payments and distributions made by the Parent with respect to Holdings and such Intermediate Holdco shall be limited to the reasonable and proportional share, as determined by the Parent in its reasonable discretion, of such expenses incurred by Holdings and the Intermediate Holdco solely relating or allocable to its Equity Interests in the Parent;
(d) the Parent may make Restricted Payments pay cash dividends, payments and distributions in an amount sufficient to cover reasonable and necessary expenses (including professional fees and expenses) (other than taxes) incurred by Holdings in connection with or pursuant to any of its (i) Employee Benefits Plans registration, public offerings and exchange listing of equity or debt securities and maintenance of the same, (ii) reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement, the employmentNotes Indenture or any other agreement or instrument relating to Indebtedness of any Loan Party or any of their Subsidiaries, termination or compensation and (iii) indemnification and reimbursement of its service providers, employeesdirectors, officers and employees in respect of liabilities relating to their serving in any such capacity, or directorsobligations in respect of director and officer insurance (including premiums therefor), provided that, if Holdings or Intermediate Holdco shall own any material assets (other than the Equity Interests of Intermediate Holdco or the Parent or other assets relating to the Equity Interests of such Intermediate Holdco or the Parent), such cash dividends, payments and distributions made by the Parent with respect to Holdings and such Intermediate Holdco shall be limited to the reasonable and proportional share, as determined by the Parent in its reasonable discretion, of such expenses incurred by Holdings solely relating or allocable to its Equity Interests in the Parent;
(e) the Parent may pay, without duplication, cash dividends, payments and distributions (A) pursuant to the Tax Sharing Agreement and (B) to pay or permit Holdings or Intermediate Holdco to pay any Related Taxes; and
(f) the Parent may pay cash dividends, payments and distributions to Intermediate Holdco for distribution to Holdings, to enable the Holdings to pay cash dividends and repurchase its Equity Interests (i) in an aggregate amount not to exceed $30,000,000 in any Fiscal Year as long as, after giving pro forma effect to such dividend, payment and distribution, no Event of Default then exists or would arise as a result thereof, and (ii) without limitation as to repurchase Equity Securities of a Borrower which a shareholder is selling whether amount if after giving pro forma effect to such repurchase is pursuant to a repurchase right distribution, payment or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e)dividend, the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerPayment Conditions are satisfied.
Appears in 3 contracts
Sources: Credit Agreement (Sally Beauty Holdings, Inc.), Credit Agreement (Sally Beauty Holdings, Inc.), Credit Agreement (Sally Beauty Holdings, Inc.)
Restricted Payments. Make The MLP and the Borrower will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentsPayment, except as followsexcept:
(a) Restricted Payments by the MLP up to the amount of Available Cash; provided that both before and after giving effect to any Restricted Payment made pursuant to this subsection (a), (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have occurred and or be continuing or and (2ii) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions Borrower shall be paid in compliance with the Incurrence Test, as demonstrated by any Guarantor a Pro Forma Compliance Certificate delivered to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsthe Administrative Agent;
(b) Restricted Payments made by (i) the Borrower to the MLP, and (ii) any Restricted Subsidiary to the Borrower may distribute rights pursuant or to another Restricted Subsidiary that is a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with wholly-owned Subsidiary of the terms of such shareholder rights planBorrower;
(c) Restricted Payments made by any Restricted Subsidiary to the owners of the Capital Stock of such Restricted Subsidiary, pro rata based on the ownership of Capital Stock of such Restricted Subsidiary;
(d) Restricted Payments payable by the MLP, the Borrower or any Restricted Subsidiary solely in interests of any of its Capital Stock other than Disqualified Capital Stock;
(e) repurchases, redemptions or other acquisitions or retirements for value of (or Restricted Payment to the MLP to permit the MLP to repurchase, redeem or otherwise acquire or retire) any Capital Stock of the MLP, the Borrower or any of its Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the MLP, the Borrower or any Subsidiary of the Borrower or, to the extent such Capital Stock was issued as compensation for services rendered on behalf of the MLP, the Borrower or any other Loan Party, any employee of the MLP, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Restricted Subsidiaries may declare and pay Restricted Payments to the MLP, the Borrower or any other Restricted Subsidiary of the Borrower the proceeds of which are used for such purposes; provided, that the aggregate amount of such purchases or redemptions in cash under this Section 7.5(e) shall not exceed in any fiscal year $5,000,000 (plus the amount of net proceeds received by the MLP or the Borrower during such calendar year from sales of Capital Stock of the MLP to directors, consultants, officers or employees of the MLP, the Borrower or any of its Affiliates in connection with permitted employee compensation and incentive arrangements); provided that both before and after giving effect to any Restricted Payment made pursuant to this subsection (e), (i) no Default or Event of Default shall have occurred or be continuing and (ii) the Borrower shall be in compliance with the Incurrence Test;
(f) payment of management fees permitted to be paid pursuant to Section 7.7; provided that both before and after giving effect to any Restricted Payment made pursuant to this subsection (f), (i) no Default or Event of Default shall have occurred or be continuing and (ii) the Borrower shall be in compliance with the Incurrence Test;
(g) any payments of principal and interest with respect to Indebtedness subordinated in right of payment to the Obligations, but only to the extent that such payments are permitted pursuant to the applicable subordination agreement and payments of principal, interest, fees and premiums thereon funded with proceeds of a Permitted Refinancing permitted pursuant to Section 7.1; and
(h) the MLP, the Borrower and the Restricted Subsidiaries may make Restricted Payments to allow the payment of cash in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as lieu of the fiscal quarter immediately preceding issuance of fractional shares upon the date exercise of determination; and (ii) when combined with options or, warrants or rights or upon the amount conversion or exchange of all purchases or into Capital Stock of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerMLP.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (Landmark Infrastructure Partners LP), Credit Agreement (Landmark Infrastructure Partners LP)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except that, so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of no Default shall have occurred and be continuing at the time of any action described below or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause would result therefrom:
(a) shall not restrict dividends each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors or Qualified Subsidiaries and any other distributions from Subsidiaries Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which are not Guarantors to other Subsidiaries which are not Guarantorssuch Restricted Payment is being made;
(b) the making of any Borrower may distribute rights pursuant Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a shareholder rights plan Subsidiary of the Borrower) of, Equity Interests of the Borrower (other than Disqualified Stock) or redeem such rights, provided that such redemption is in accordance with from the terms substantially concurrent contribution of such shareholder rights planequity capital to the Borrower (other than Disqualified Stock);
(c) any Borrower may declare and make Restricted Payments dividend payments or other distributions payable solely in connection with Equity Interests of the Borrower (other than Disqualified Stock) to Holdings;
(d) the purchase, redemption or other acquisition or retirement for value of shares of Equity Interests of a Qualified Subsidiary owned by a Strategic Investor if such purchase, redemption or other acquisition or retirement for value is made for consideration not in excess of the Fair Market Value of such Equity Interests (a) pursuant to any repurchase obligation to such Strategic Investor or (b) if no Default exists or would result therefrom;
(e) the Borrower and each Subsidiary may make Permitted Payments to Holdings;
(f) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Subsidiary of the Borrower held by any current or former officer, director, employee or consultant of the Borrower or any of its Subsidiaries, and any dividend payment or other distribution by the Borrower or a Subsidiary to Holdings or any other direct or indirect parent holding company of the Borrower utilized for the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or such other direct or indirect parent holding company held by any current or former officer, director, employee or consultant of the Borrower or any of its Subsidiaries or Holdings or such other parent holding company, in each case, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan or other agreement of any kind; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $5,000,000 in any fiscal year (it being understood, however, that unused amounts permitted to be paid pursuant to this proviso are available to be carried over to subsequent fiscal years but in no event shall the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests exceed $10,000,000 in any year); provided further that such amount in any fiscal year may be further increased by an amount not to exceed:
(i) Employee Benefits Plans the net cash proceeds from the sale of Equity Interests of the Borrower (other than Disqualified Stock) and, to the extent contributed to the Borrower as equity capital (other than Disqualified Stock), Equity Interests of Holdings or any other direct or indirect parent company of the Borrower, in connection with each case to members of management, directors or consultants of the employmentBorrower, termination or compensation any of its service providersSubsidiaries, employeesHoldings or any other direct or indirect parent company of the Borrower that occurs after the Closing Date, officers or directorsplus
(ii) the cash proceeds of key man life insurance policies received by the Borrower and its Subsidiaries after the Closing Date, minus
(iii) the amount of any Restricted Payments previously made pursuant to clauses (i) and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligationsthis Section 7.06(f); and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Subsidiaries in connection with a repurchase of Equity Interests of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement;
(g) all payments to be made under the Purchase Agreement and all other payments made or to be made in connection with the Transactions (including payments made to Parent to permit it to make such payments) as set forth in the Offering Memorandum for the Senior Secured Notes, including payments to stockholders, and holders of options and warrants for common stock, of the merger consideration (or, in the case of options and warrants, the merger consideration less the exercise price thereof), and all payments made to former stockholders of the Borrower who have validly exercised appraisal rights, in connection with the Transactions;
(h) purchases of receivables pursuant to a Receivables Repurchase Obligation and distributions or payments of Receivables Fees and any other payments, in each case, in connection with a Qualified Receivables Transaction;
(i) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Borrower or any Subsidiary of the Borrower which Disqualified Stock was issued after the Closing Date in accordance with the provisions of this clause Section 7.02;
(f)j) the repurchase of Equity Interests deemed to occur upon the exercise of options, shall not restrict any Subsidiary from declaring rights or paying warrants to the extent such Equity Interests represent a portion of the exercise price of those options, rights or warrants;
(k) payment of fees and reimbursement of other expenses to the Permitted Holders in connection with the Transactions as described in the Offering Memorandum for the Senior Secured Notes under the caption “Certain Relationships and Related Transactions” or dividends to any direct or indirect parent of the Borrower to fund such payments;
(l) 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 giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have otherwise been permitted pursuant to this Section 7.06;
(m) the repurchase, redemption or other acquisition or retirement for value of Disqualified Stock of the Borrower or to any wholly owned Subsidiary of Borrowerthe Borrower made by exchange for, or out of the proceeds of the substantially concurrent sale of Replacement Preferred Stock that is permitted pursuant to Section 7.02; and
(n) cash payments in lieu of fractional shares issuable as dividends on preferred stock or upon the conversion of any preferred stock or convertible debt securities of the Borrower or any of its Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (American Renal Associates LLC), Credit Agreement (American Renal Associates LLC)
Restricted Payments. Make any Restricted Payments, Payments except as follows:
for (a) such to be used to pay director fees and expenses and overhead of Parent Holdco or Topco directly attributable to its direct or indirect ownership of Borrower and its Subsidiaries, (b) dividends and distributions by Subsidiaries of a Loan Party paid to such Loan Party (other than Parent Holdco); provided, that dividends and distributions by a non-wholly owned Subsidiary of a Loan Party shall only be made with the prior written consent of Agent if any Person other than a Loan Party would be entitled to receive any portion of such dividend or distribution, (c) tax distributions to allow Parent Holdco or Topco to pay franchise and other Taxes owed by either of them, but excluding any Taxes payable with respect to any Person that is not a Loan Party or Subsidiary thereof (other than Topco, solely as a member of the consolidated tax group including Borrower and its Subsidiaries) as well as the consolidated, combined, unitary or other group taxes owed by Topco and its Subsidiaries, (d) the purchase, redemption or other retirement of any common or preferred Equity Interests, or of any options to purchase or acquire any such shares of common or preferred Equity Interests of such Loan Party or Topco other than (provided that (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have has occurred and be is continuing or would arise as a result of such Restricted Payment, (2ii) after giving effect to such Restricted Payment, the Leverage Ratio (determined Loan Parties and their Subsidiaries are in compliance on a pro forma basis after giving effect with the financial covenants set forth in Section 6.5, recomputed for the most recent fiscal quarter for which financial statements have been delivered to such transactionAgent and Lenders pursuant to the terms of this Agreement, (iii) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that the aggregate Restricted Payments permitted under this clause (ad) shall not restrict dividends or other distributions exceed $2,500,000 during the term of this Agreement plus the amount of any net cash proceeds received from Subsidiaries which are not Guarantors additional issuances of Equity Interests to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (iiiv) both before and after giving effect to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 Payment, no Covenant Compliance Period (as defined in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation PNC Credit Agreement
) shall then be in effect) from employees, officers, directors and consultants, (de) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; [reserved] and (ii) when combined any other earnout or other similar deferred purchase price payment obligations incurred pursuant to a Permitted Acquisition (provided that (w) the earnout or other similar deferred purchase price payment obligations with respect to which such Restricted Payment described in clause (e)(ii) above is made are unsecured, (x) no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment, (y) after giving effect to such Restricted Payment, the Loan Parties and their Subsidiaries are in compliance on a pro forma basis with the amount financial covenants set forth in Section 6.5, recomputed for the most recent fiscal quarter for which financial statements have been delivered to Agent and Lenders pursuant to the terms of all purchases of Equity Securities made this Agreement, and (z) the aggregate Restricted Payments permitted under Section 7.06(e), the total of all such dividends, purchases or redemptions this subclause (ii) shall not exceed $2,000,000 during any fiscal year), (f) any other Restricted Payment otherwise expressly permitted by the sum of $100,000 in the aggregate over the life terms of this Agreement; provided, further, that Agreement and the provisions of this clause PNC Credit Agreement and (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerg) the Restatement Effective Date Dividend.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Term Loan and Security Agreement (Boot Barn Holdings, Inc.)
Restricted Payments. Make The 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 PaymentsPayment; provided, except as follows:
that (a) the Company may make repurchases, redemptions or other acquisitions of its Equity Interests so long as (i) Borrowers no Default or Event of Default has occurred or would result therefrom, (ii) the Company will be in compliance with the financial covenants set forth in Section 5.9 on a Pro Forma Basis after giving effect to such Restricted Payment and (iii) the amount paid by the Company with respect to such repurchases, redemptions or other acquisitions during the term of this Agreement shall not exceed an aggregate amount equal to $100,000,000, (b) the Company shall be permitted to make other Restricted Payments in an aggregate amount not to exceed $20,000,000 in any 12-month period so long as no Default or Event of Default shall then exist or would exist after giving effect to such Restricted Payment, (c) the Company may pay dividends declare and make dividend payments or other distributions payable solely in shares common Equity Interests of capital stock the Company, (d) the Company may make payments on, repurchases, redemptions or other acquisitions of any Borrower or any Subsidiary or its Equity Interests that are in the form of convertible Indebtedness of the Company as a result of the exercise of conversion rights by the holder thereof, (iie) a Subsidiary Subsidiaries of the Company may pay dividends declare and make dividend payments or other distributions to any Borrower the Company or to another Subsidiary; provided other Subsidiaries of the Company, (f) Subsidiaries of the Company that the total of all such dividends are not Guarantors may declare and make dividend payments or other distributions to Subsidiaries which the extent such dividend payments or other distributions are not paid ratably to the holders of the Equity Interests thereof according to their respective Equity Interests and (g) Guarantors, the U.K. Borrower and U.K. Guarantors shall not exceed $300,000 over may declare and make dividend payments or other distributions to the life extent such dividend payments or other distributions are paid ratably to the holders of the Equity Interests thereof according to their respective Equity Interests; provided, that, with respect to this Agreementclause (g), and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2i) the Leverage Ratio (determined on a pro forma basis Company shall be in compliance with the financial covenants set forth in Section 5.9 after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends dividend payments or other distributions shall be paid by any Guarantor to any Subsidiary which is not also on a Guarantor; provided, however, that this clause Pro Forma Basis or (aii) shall not restrict dividends such dividend payments or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with approved by the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerAdministrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Esterline Technologies Corp), Credit Agreement (Esterline Technologies Corp)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contribution, except that, so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have occurred and be continuing prior to or (2) the Leverage Ratio (determined on a pro forma basis immediately after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends any action described below or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause would result therefrom:
(a) shall not restrict dividends each Subsidiary of a Loan Party may make Restricted Payments to any Loan Party (other than Parent, unless either (i) the Restricted Payment Conditions are satisfied, or other distributions from Subsidiaries which (ii) such Restricted Payments are not Guarantors made to other Subsidiaries which are not Guarantorspay or reimburse the Parent for expenses incurred in the ordinary course of the Parent’s business, as conducted on the date hereof);
(b) any Borrower the Loan Parties and each Subsidiary may distribute rights pursuant to a shareholder rights plan declare and make dividend payments or redeem such rights, provided that such redemption is other distributions payable solely in accordance with the terms common stock or other common Equity Interests of such shareholder rights planPerson;
(c) the Loan Parties may issue and sell Equity Interests provided (and the Loan Parties may accept any Borrower may make Restricted Payments capital contribution made in connection with or pursuant to any of its such issuance and sale) that (i) Employee Benefits Plans or (A) with respect to any Equity Interests, all dividends in connection with respect of which are to be paid (and all other payments in respect of which are to be made) shall be in additional shares of such Equity Interests, in lieu of cash, (B) such Equity Interests shall not be subject to redemption other than redemption at the employmentoption of the Loan Party issuing such Equity Interests, termination or compensation and (C) all payments in respect of its service providers, employees, officers or directorssuch Equity Interests are expressly subordinated to the Obligations, and (ii) to repurchase no Loan Party shall issue any additional Equity Securities of Interests in a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementSubsidiary;
(d) the Loan Parties may issue and sell Equity Interests (other than Disqualified Stock), and the Loan Parties may accept any capital contribution made in connection with any such issuance and sale, provided that no Subsidiary of any Borrower Loan Party shall issue any additional Equity Interests except to a Loan Party;
(e) if the Restricted Payment Conditions are satisfied, (i) the Loan Parties and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it, and (ii) the Parent may declare or pay any ratable cash dividends in respect of to its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions shareholders; and
(f) to shareholders not otherwise the extent constituting Restricted Payments, the Loan Parties and their Subsidiaries may enter into transactions expressly permitted hereunder, provided that pursuant to Section 7.04. The Loan Parties shall provide the Collateral Agent (i) with written notice of any Restricted Payment, in each case as otherwise permitted pursuant to this Section 7.06(e), no less than five (5) days prior to the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; making thereof and (ii) when combined with written confirmation (which shall include a fed reference number, if applicable) on the amount date of all purchases the making of Equity Securities made under Section 7.06(e), the total of all any such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerRestricted Payment.
Appears in 2 contracts
Sources: Credit Agreement (A.C. Moore Arts & Crafts, Inc.), Credit Agreement (A.C. Moore Arts & Crafts, Inc.)
Restricted Payments. Make The Borrower shall not, nor shall it permit any Subsidiary to, declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except that, so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of no Default shall have occurred and be continuing at the time of any action described below or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause would result therefrom:
(a) shall not restrict dividends or each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other distributions from Subsidiaries Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which are not Guarantors to other Subsidiaries which are not Guarantorssuch Restricted Payment is being made;
(b) any the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the Borrower may distribute rights pursuant to a any existing shareholder rights plan or redeem such rights, provided that such redemption is rights in accordance with the terms of any such existing shareholder rights plan;
(cd) any the Borrower and its Subsidiaries may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans employee benefits plans or in connection with the employment, termination or compensation of its service providers, employees, officers officers, directors or directorsconsultants, including any repurchase or retention of Equity Interests in payment of withholding taxes in connection with equity-based compensation arrangements;
(e) the Borrower may make non-cash repurchases of Equity Interests that are deemed to occur upon exercise of stock options if the proceeds of such repurchases are deemed to represent a portion of the exercise price of such options;
(f) the Borrower may repurchase fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversion of convertible securities;
(g) the Borrower may make any payment at the maturity of, or any payment constituting an Early Retirement of its Public Indebtedness;
(h) the Borrower may (i) declare and pay cash dividends to its stockholders and (ii) purchase, redeem or otherwise acquire for cash Equity Interests issued by it, if (A) such declaration and payment would be permitted under Section 3.4 of the Senior Secured Notes Indenture were the same to repurchase Equity Securities of be treated as a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to “Restricted Payment” (c)(ii) above, such Restricted Payments may not exceed $1,000,000 as defined in the aggregate at any time there are Outstanding ObligationsSenior Secured Notes Indenture), and (B) after giving effect thereto, the Borrower would not be in Default; and Adesto Technologies Corporation Credit Agreementand
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid Borrower may make any payment required under the Senior Secured Notes (or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made other Indebtedness permitted under Section 7.06(e7.02(k), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower) upon an asset disposition.
Appears in 2 contracts
Sources: Credit Agreement (McClatchy Co), Commitment Reduction and Amendment and Restatement Agreement (McClatchy Co)
Restricted Payments. Make The Obligors will not, and will not permit any of the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentsPayment, except as followsreturn any capital to holders of its Equity Interests or make any distribution of its Property to its respective Equity Interest holders, except:
(a) (i) Borrowers Holdings and the Parent may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in additional shares of capital stock its Equity Interests (other than Disqualified Capital Stock);
(ii) Restricted Subsidiaries of any the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests to its direct parent that is the Borrower or a Subsidiary Guarantor;
(iii) the Borrower may declare and pay dividends or distributions to the Parent, and the Parent may declare and pay dividends or distributions to Holdings, to permit the Parent and/or Holdings to pay (or the Borrower may pay on behalf of the Parent and/or Holdings), as applicable, (A) Taxes then due and owing by the Parent or Holdings and (B) reasonable compensation and expenses of directors and officers of the Parent or Holdings incurred in the ordinary course of business consistent with customary industry practice;
(iv) for so long as the Parent is treated as a flow-through entity for U.S. federal income tax purposes, the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to Permitted Tax Distributions, and the Parent may make Permitted Tax Distributions; CREDIT AGREEMENT
(v) so long as, both before and immediately after giving effect thereto, each of the RP/Investment Conditions is satisfied: (A) the Borrower or any Subsidiary or (ii) a Restricted Subsidiary may declare and pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such Parent, the Parent may declare and pay dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this AgreementHoldings, and provided further that if Holdings may declare and pay dividends or distributions, in each case in cash, ratably with respect to its Equity Interests and (1B) a Holdings may repurchase or otherwise acquire, for cash, its Equity Interests (other than Disqualified Capital Stock or preferred equity) from the holders of its Equity Interests;
(vi) so long as (A) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom and (2B) the Leverage Ratio (determined Holdings’ common stock is not listed for trading on a pro forma basis after giving effect to national exchange at the time of vesting and/or settlement of an Award (as such transaction) is greater than 2.00 to 1.00term in defined in Holdings’ Incentive Plan), no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower then Holdings may distribute rights withhold the number of shares of common stock otherwise deliverable pursuant to the Award with a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with fair market value equal to the terms total income and employment taxes imposed as a result of such shareholder rights plan;
(c) any Borrower the vesting and/or settlement of the Award and may make Restricted Payments such tax payment (or may make a payment in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases such tax payment to the holder of Equity Securities made under Section 7.06(ethe Award); and
(vii) so long as no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing or would result therefrom, the total Obligors or any Restricted Subsidiary may distribute, or make other Restricted Payments of, Equity Interests in Unrestricted Subsidiaries or Permitted Joint Ventures to the holders of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowertheir Equity Interests.
Appears in 2 contracts
Sources: Credit Agreement (Riviera Resources, LLC), Credit Agreement (Linn Energy, Inc.)
Restricted Payments. Make The Borrower will not, nor will it permit any Subsidiary to, make any Restricted Payments, Payment (other than dividends payable in its own capital stock) except as follows:that,
(a) 6.10.1 Any Subsidiary may declare and pay dividends or make distributions (i) Borrowers may pay dividends or other distributions payable solely in its capital stock to the direct or indirect holders of its capital stock or (ii) payable in dividends and distributions to the Borrower or to a Subsidiary that is a Guarantor (and if such Subsidiary has shareholders other than the Borrower or a Subsidiary that is a Guarantor, to its shareholders on a pro rata basis).
6.10.2 The Borrower may make Restricted Payments pursuant to stock incentive or award plans approved by its stockholders.
6.10.3 The Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock (or warrants, options, or other rights to acquire additional shares of its capital stock).
6.10.4 The Borrower and its Subsidiaries may make repurchases of capital stock deemed to occur upon exercise of stock options if such capital stock represents a portion of the exercise price of such options, and repurchases of capital stock of Subsidiaries consisting of directors’ qualifying shares or repurchases of shares issued to third parties to the extent necessary to satisfy any Borrower licensing requirements under applicable law with respect to the Borrower’s or any Subsidiary or (ii) a Subsidiary of its Subsidiaries’ businesses.
6.10.5 The Borrower may pay dividends make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other distributions to any Borrower securities convertible into or to another Subsidiary; provided that exchangeable for capital stock of the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a GuarantorBorrower; provided, however, that this clause (a) any such cash payment shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;be for the purpose of evading the limitations of this Section 6.10.
(b) any 6.10.6 The Borrower may distribute rights pursuant to a shareholder rights plan purchase, acquire, transfer or redeem such rights, provided that such redemption is in accordance with issue the terms Borrower’s capital stock and make any required cash payments or deliveries of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans property under or in connection with the employmentExisting Convertible Note Transactions or the Replacement Convertible Note Offering.
6.10.7 The Borrower and its Subsidiaries may make any purchase, termination repurchase, redemption, retirement or compensation other acquisition for value of shares of, or options to purchase shares of, capital stock of the Borrower or any of its service providers, Subsidiaries from employees, officers former employees, directors or former directors of the Borrower or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right the terms of agreements (including employment agreements) or otherwiseplans (or amendments thereto) approved by the Board of Directors under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such capital stock; provided, however, that with respect to (c)(ii) abovethe aggregate amount of such purchases, such Restricted Payments may repurchases, redemptions, retirements and other acquisitions for value will not exceed $1,000,000 2,000,000 in any calendar year.
6.10.8 The Borrower and its Subsidiaries may make any Restricted Payment to the extent not otherwise permitted under this Section 6.10 so long as at the time of such Restricted Payment the aggregate amount of such additional Restricted Payment together with all other outstanding Restricted Payments pursuant to this Section 6.10.8 does not exceed $5,000,000.
6.10.9 Any Restricted Payment may be made by or to a Rabbi Trust or Rabbi Trust Subsidiary.
6.10.10 So long as no Event of Default or Unmatured Event of Default exists at any the time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
thereof or would result therefrom (d) any Subsidiary of any after giving pro forma effect thereto), the Borrower may declare or and pay cash dividends on its capital stock, repurchase and otherwise acquire its capital stock and make any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerother Restricted Payment.
Appears in 2 contracts
Sources: Credit Agreement (Chemed Corp), Credit Agreement (Chemed Corp)
Restricted Payments. Make Holdings shall not, nor shall it permit any Subsidiary to, declare, pay or make, or agree to pay or make, directly or indirectly, any Restricted Payments, Payment except as followsthat:
(a) each Subsidiary of the Borrower may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that is a Guarantor and any other Person that owns a direct Equity Security in such Subsidiary, rateably according to their respective holdings of the type of Equity Security in respect of which such Restricted Payment is being made;
(ib) Borrowers Holdings and each Subsidiary may pay dividends declare and make dividend payments or other distributions payable solely in shares the common stock or other common Equity Securities of capital stock such Person;
(c) Holdings may distribute rights pursuant to any existing shareholder rights plan or redeem such rights in accordance with the terms of any such existing shareholder rights plan;
(d) the Borrower may make Restricted Payments to Holdings to pay general corporate and overhead expenses and other administrative expenses of Holdings and to make customary indemnification payments to officers and directors of Holdings in an aggregate amount for this clause (d) not to exceed $5,000,000 for each fiscal year of Holdings;
(e) the Borrower may make (i) any mandatory or scheduled payment on the First Lien Notes, Subscription Receipts, Senior Secured Notes or other Subordinated Indebtedness, and (ii) any optional payment constituting an Early Retirement of (A) Subordinated Indebtedness owing by the Borrower or any Subsidiary or that is otherwise permitted hereunder, (B) the Senior Secured Notes and (C) the First Lien Notes; provided that in the case of this clause (ii) after giving effect thereto the Payment Conditions are satisfied;
(f) the Loan Parties may make any payment constituting an Early Retirement of Indebtedness as a Subsidiary result of a refinancing, refunding, extension, defeasance, discharge, renewal or replacement of Indebtedness that is permitted by Section 5.1;
(g) the Borrower may pay dividends make Restricted Payments to Holdings (and Holdings may make Restricted Payments to its Parent) (i) to enable Holdings (or its Parent) to redeem or repurchase Equity Securities from officers, directors, employees or consultants of Holdings or its Subsidiaries, upon termination of employment or service, in connection with the exercise of stock options, stock appreciation rights or other distributions to any Borrower equity incentives or to another Subsidiaryequity based incentives, or in connection with the death or disability of such officers, directors, employees or consultants; provided that in all such cases the total aggregate amount paid in respect of all such dividends shares so redeemed or other distributions to Subsidiaries which are not Guarantors shall repurchased does not exceed $300,000 over 2,500,000 in the life aggregate in any fiscal year; (ii) that consist of this Agreementthe cancellation of Indebtedness owing to a Loan Party from officers, directors, employees or consultants of Holdings or its Subsidiaries in connection with any repurchase of Equity Securities; and (iii) arising from repurchases of Equity Securities deemed to occur upon the exercise of stock options if such stock represents a portion of the exercise price thereof;
(i) Holdings may (A) make regularly scheduled payments of interest in respect of any Permitted Convertible Indebtedness and (B) make cash payments in connection with any conversions of Permitted Convertible Indebtedness (provided further that if that, in the case of each of (1A) a and (B), other than cash payments in lieu of fractional shares upon conversion, both immediately prior and after giving effect to any such payment, (x) no Default or Event of Default shall have occurred and be continuing or result therefrom and (2y) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which Payment Conditions are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directorssatisfied), and (ii) the Borrower may distribute to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant Holdings cash in amounts necessary to a repurchase right or otherwise, provided, however, that with respect enable Holdings to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 make any payment referred to in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreementforegoing clause (i);
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) Restricted Payments that constitute, or are part of, the Skate Acquisition, including pursuant to any rights offering that is made in connection with such transaction and/or a redemption of such rights;
(j) any release of the proceeds thereof and retirement of the Subscription Receipts in accordance with their terms, or any exchange of Subscription Receipts for First Lien Notes; and
(k) other Restricted Payments during the term of this Agreement in an aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not to exceed 5% of Consolidated Tangible Net Worth $10,000,000 plus, so long as determined as of immediately before and immediately after giving effect thereto on a Pro Forma Basis the fiscal quarter immediately preceding Payment Conditions are satisfied, the Additional Available Amount on the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerRestricted Payment is made.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Postmedia Network Canada Corp.), Revolving Credit Agreement (Postmedia Network Canada Corp.)
Restricted Payments. Make The Borrower shall not, and shall not cause or permit any Restricted PaymentsSubsidiary to, except as followsdirectly or indirectly, make a Restricted Payment, except:
(a) 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;
(b) payments of cash, dividends, distributions, advances or other Restricted Payments by the Borrower or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon (i) Borrowers may pay dividends the exercise of options or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary warrants or (ii) a Subsidiary may pay dividends the conversion or exchange of Equity Interests of any such Person;
(c) payments to dissenting stockholders of the Borrower not to exceed $5,000,000 in the aggregate made (i) pursuant to applicable law or (ii) in connection with the settlement or other distributions satisfaction of legal claims made pursuant to any Borrower or to another Subsidiary; provided that the total in connection with a consolidation, merger or transfer of all such dividends or other distributions to Subsidiaries which are assets in connection with a transaction not Guarantors shall not exceed $300,000 over the life of prohibited by this Agreement, and provided further that if ;
(1d) a so long as no Potential Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis shall result therefrom, Restricted Payments; provided that after giving effect to such transactionthereto and any incurrence of Indebtedness in connection therewith, (x) is greater than 2.00 to 1.00, no such dividends or other distributions the Borrower shall be paid by any Guarantor to any Subsidiary which is in compliance on a Pro Forma Basis with the Financial Covenants and (y) Availability would equal not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsless than 10% of the Commitments;
(be) any repurchase of outstanding Equity Interests of the Borrower may distribute rights pursuant in exchange for Equity Interests (other than Disqualified Stock) of the Borrower;
(f) prepayment of any Subordinated Obligations with Refinancing Indebtedness thereof; and
(g) repurchases of Subordinated Obligations of the Borrower or any Guarantor at a purchase price not greater than 100% of the principal amount of such Subordinated Obligations in the event of an asset disposition, in each case plus accrued and unpaid interest thereon, to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the extent required by the terms of such shareholder rights plan;
(c) any Subordinated Obligations, but only if the Borrower may make Restricted Payments has complied with and fully satisfied its obligations in connection accordance with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower8.2.7 [Dispositions].
Appears in 2 contracts
Sources: Revolving Credit Facility (CNX Resources Corp), Revolving Credit Facility (CNX Resources Corp)
Restricted Payments. Make 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 PaymentsPayment, except as followsreturn any capital to its stockholders or make any distribution of its Property to its Equity Interest holders, except:
(a) (i) Borrowers the Borrower may declare and pay dividends or other and distributions with respect to its Equity Interests payable solely in additional shares of capital stock its Equity Interests (other than Disqualified Capital Stock);
(b) Subsidiaries may declare and pay dividends to other Loan Parties ratably with respect to their Equity Interests;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common or subordinated Equity Interests with the proceeds received from the substantially concurrent issue of new common or subordinated Equity Interests;
(d) the Borrower may declare and pay quarterly cash distributions of Available Cash to the holders of any Equity Interests in the Borrower in accordance with the Borrower’s Organization Documents; provided, that no Default exists at the time of or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsRestricted Payment;
(be) any substantially contemporaneously with the consummation of the Specified Transactions on the Closing Date, the Borrower may distribute rights declare and pay Restricted Payments to the extent required pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights planContribution Agreement;
(cf) any the Borrower may make Restricted Payments pursuant to and in connection with long-term incentive plans or other benefit plans or arrangements for directors, management, employees or consultants of the Borrower and its Subsidiaries;
(g) the Borrower may make Restricted Payments to redeem its Equity Interests that are held at such time by “Ineligible Holders” (as defined in the Partnership Agreement) pursuant to Section 4.10 of the Partnership Agreement;
(h) so long as no Default has occurred and is continuing, (i) the Borrower may repurchase, redeem or otherwise acquire any Equity Interests of the Borrower held by any current or former officer, director, consultant, or employee of the Borrower, the Subsidiaries and the General Partner pursuant to any of its (i) Employee Benefits Plans equity subscription agreement, stock option agreement, shareholders’, members’ or in connection with the employmentpartnership agreement or similar agreement, termination plan or compensation of its service providers, employees, officers arrangement or directors, any Plan and (ii) to repurchase Equity Securities of a the extent such payments are deemed to be Restricted Payments, the Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right may make payments under stock appreciation rights, phantom stock or otherwise, provided, however, other similar cash settled interests issued under the Borrower’s long term incentive program; provided that with respect to (c)(ii) above, such the aggregate Restricted Payments may made under this clause (h) shall not exceed $1,000,000 in the aggregate at 3,000,000 during any time there are Outstanding Obligationsfiscal year; and Adesto Technologies Corporation Credit Agreementand
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) payments of cash, dividends, distributions, advances or other Restricted Payments by the aggregate amount paid or distributed Borrower to allow the payment of cash in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as lieu of the fiscal quarter immediately preceding issuance of fractional units upon the date exercise of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases options or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerwarrants.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Southcross Energy Partners, L.P.)
Restricted Payments. Make 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, make any other Restricted Payments, except as follows:
payable solely in additional shares of its common stock, (ab) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) so long as, at the time any such Restricted Payment is made and immediately after giving effect (including pro forma effect) thereto (and to the incurrence of any Indebtedness in connection therewith) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have occurred and be is continuing, (ii) the Total Net Leverage Ratio is not greater than 2.50 to 1.00 and (iii) the Borrower is in compliance with the financial covenants set forth in Section 6.11, the Borrower and its Subsidiaries may make other Restricted Payments, (e) so long as no Default or Event of Default has occurred and is continuing or (2) the Leverage Ratio (determined on a pro forma basis would arise after giving effect (including pro forma effect) thereto the Borrower and any Subsidiaries may repurchase Equity Interests from any current or former officer, director, employee or consultant to comply with Tax withholding obligations relating to Taxes payable by such transactionPerson upon the grant or award of such Equity Interests (or upon vesting thereof), (f) so long as no Default or Event of Default has occurred and is greater than 2.00 to 1.00then continuing or would arise after giving effect (including pro forma effect) thereto, no such dividends the Borrower and any Subsidiaries may purchase Equity Interests from present or other distributions shall be paid by any Guarantor to former officers, directors or employees of the Borrower or any Subsidiary which is not also a Guarantor; providedupon the death, howeverdisability, that this clause (a) shall not restrict dividends retirement or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan termination of employment or redeem such rights, provided that such redemption is in accordance with the terms service of such shareholder rights plan;
officer, director or employee, in an aggregate amount not exceeding $5,000,000 in any fiscal year of the Borrower and (cg) so long as no Default or Event of Default has occurred and is continuing or would arise after giving effect (including pro forma effect) thereto, the Borrower and any Borrower Subsidiaries may make other Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the an aggregate amount paid or distributed not exceeding $15,000,000 in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as fiscal year of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Eagle Pharmaceuticals, Inc.), Credit Agreement (Eagle Pharmaceuticals, Inc.)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, except as followsthat:
(a) each Subsidiary of a Loan Party may make Restricted Payments to its direct equity holders, and any Non-Guarantor Subsidiary may make Restricted Payments to another Non-Guarantor Subsidiary;
(ib) Borrowers the Loan Parties and each Subsidiary thereof may pay dividends declare and make dividend payments or other distributions payable solely in shares the stock or other Equity Interests of capital stock such Person;
(c) to the extent actually used by Holdings to pay such taxes, costs and expenses, the Loan Parties and their Subsidiaries may make Restricted Payments to or on behalf of any Borrower Holdings in an amount necessary to pay Permitted Holdings Expenses;
(d) so long as no Specified Default has occurred or is continuing or would result after giving effect thereto on a pro forma basis, payments to Holdings to permit Holdings (or its direct parent company), and the subsequent use of such payments by Holdings (or its direct parent company), to repurchase or redeem Qualified Capital Stock of Holdings (or its direct parent company) held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Holdings or any Subsidiary thereof, upon their death, disability, retirement, severance or (ii) a Subsidiary may pay dividends termination of employment or other distributions to any Borrower or to another Subsidiaryservice; provided that the total of aggregate cash consideration paid for all such dividends or other distributions to Subsidiaries which are not Guarantors redemptions and payments shall not exceed $300,000 over 5.0 million;
(e) Permitted Tax Distributions (excluding any amounts distributable under subsection (c)) to Holdings, so long as Holdings uses such distributions to pay its taxes (or distributes such amounts to Holdings and Holdings uses such amounts to pay its taxes);
(f) so long as no Specified Default has occurred, is continuing or would result therefrom, Restricted Payments from any Loan Party or any Subsidiary to Holdings to the life extent actually used by Holdings to (i) pay interest payments when due in respect of this Agreement(A) Certain Holdings Indebtedness or any Indebtedness incurred by Holdings to refinance such Certain Holdings Indebtedness and (B) any Indebtedness incurred by Holdings to refinance the Loans, and provided further that if (1ii) a pay obligations owing in respect of any Specified Holdings Indebtedness or renewals and extensions thereof; and
(g) so long as no Default or Event of Default shall have has occurred and be continuing is continuing, the repayment of intercompany Indebtedness owed to Holdings with, or (2) the Leverage Ratio (determined distribution or loan to Holdings by a Loan Party of amounts received by the Subsidiary of the Borrower organized in Hong Kong from the affiliated Non-Loan Party organized in Spain constituting the repayment of intercompany Indebtedness outstanding on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantorthe Closing Date; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with amounts are applied first to the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant outstanding balance owed under the Delaware Note, if any, to any of its (i) Employee Benefits Plans or in connection with reduce the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of Delaware Note on a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerdollar for dollar basis.
Appears in 2 contracts
Sources: Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc)
Restricted Payments. Make Each Loan Party will not, and will not permit any of its Subsidiaries to, make any Restricted PaymentsPayment, except as followsthat:
(a) Parent may redeem or repurchase Equity Interests of Parent from employees, directors and former employees and directors of Parent in connection with share purchase programs, including amounts for the payment of taxes related thereto, (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total an aggregate amount of all such dividends redemptions or other distributions repurchases and payments in respect of taxes made pursuant to Subsidiaries which are this Section 6.7(a) in any fiscal year not Guarantors shall not to exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor5,500,000; provided, however, that this clause any repayments, repurchases, or redemptions in connection with the shares currently in the amount of $2,500,000 held by Wilmington Trust, N.A. (aacting in its capacity as escrow agent under the Escrow Agreement, dated the Closing Date, among the Parent, Workforce Solutions Group, Inc. and Wilmington Trust, N.A.) to cover any potential litigation or expenses arising out of or relating to non-competition issues shall not restrict dividends be excluded from the foregoing limitation, or other distributions from Subsidiaries which are not Guarantors (ii) in an unlimited amount so long as after giving effect to other Subsidiaries which are not Guarantors;any such redemption or repurchase, or payment in respect of taxes, on a pro forma basis, each of the Payment Conditions is satisfied,
(b) any Borrower Parent’s Subsidiaries may distribute rights pursuant make distributions to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;Parent,
(c) each Loan Party and its Subsidiaries may pay dividends solely in shares of any Borrower class of its Qualified Equity Interests,
(d) redemptions or repurchase of Equity Interests of any Loan Party and its Subsidiaries made solely in shares of any class of its Qualified Equity Interests,
(e) each Loan Party and its Subsidiaries may make Restricted Payments to any other Loan Party, and
(f) each Loan Party and its Subsidiaries may make Restricted Payments in connection with or pursuant an aggregate amount in any fiscal year not to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwiseexceed $25,000,000, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; any such payment and (ii) when combined with after giving effect thereto, each of the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerPayment Conditions is satisfied.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Cross Country Healthcare Inc), Term Loan Credit Agreement (Cross Country Healthcare Inc)
Restricted Payments. Make any Restricted Payments, Payments except as follows:
for (a) such to be used to pay director fees and expenses and overhead of Parent Holdco or Topco directly attributable to its direct or indirect ownership of Borrower and its Subsidiaries, (b) dividends and distributions by Subsidiaries of a Loan Party paid to such Loan Party (other than Parent Holdco); provided, that dividends and distributions by a non-wholly owned Subsidiary of a Loan Party shall only be made with the prior written consent of Agent if any Person other than a Loan Party would be entitled to receive any portion of such dividend or distribution, (c) tax distributions to allow Parent Holdco or Topco to pay franchise and other Taxes owed by either of them, but excluding any Taxes payable with respect to business activities of or income earned by any Person (other than income attributable to Topco as a member of the consolidated tax group that includes Borrower and its Subsidiaries) that is not a Loan Party or Subsidiary thereof, as well as the consolidated, combined, unitary or other group taxes owed by Topco with respect to Parent Holdco and its Subsidiaries, (d) the purchase, redemption or other retirement of any common or preferred Equity Interests, or of any options to purchase or acquire any such shares of common or preferred Equity Interests of such Loan Party or Topco other than (provided that (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have has occurred and be is continuing or would arise as a result of such Restricted Payment, (2ii) after giving effect to such Restricted Payment, the Leverage Ratio (determined Loan Parties and their Subsidiaries are in compliance on a pro forma basis after giving effect with the financial covenant set forth in Section 6.5, recomputed for the most recent fiscal quarter for which financial statements have been delivered to such transactionAgent and Lenders pursuant to the terms of this Agreement, (iii) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that the aggregate Restricted Payments permitted under this clause (ad) shall not restrict dividends or other distributions exceed $2,500,000 during the term of this Agreement plus the amount of any net cash proceeds received from Subsidiaries which are not Guarantors additional issuances of Equity Interests to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (iiiv) both before and after giving effect to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 Payment, no Covenant Compliance Period shall then be in the aggregate at any time there are Outstanding Obligations; effect) from employees, officers, directors and Adesto Technologies Corporation Credit Agreement
consultants, (de) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; ▇▇▇▇▇▇▇ Earnout Payment and (ii) when combined any other earnout or other similar deferred purchase price payment obligations incurred pursuant to a Permitted Acquisition (provided that (w) the earnout or other similar deferred purchase price payment obligations with respect to which such Restricted Payment described in clause (e)(ii) is made are unsecured, (x) no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment, (y) after giving effect to such Restricted Payment, the Loan Parties and their Subsidiaries are in compliance on a pro forma basis with the amount financial covenant set forth in Section 6.5, recomputed for the most recent fiscal quarter for which financial statements have been delivered to Agent and Lenders pursuant to the terms of all purchases of Equity Securities made this Agreement, and (z) the aggregate Restricted Payments permitted under Section 7.06(e), the total of all such dividends, purchases or redemptions this clause (e)(ii) shall not exceed $2,000,000 during any fiscal year), and (f) any other Restricted Payment otherwise expressly permitted by the sum of $100,000 in the aggregate over the life terms of this Agreement and the Term Loan Agreement; provided. For the avoidance of doubt, further, that the provisions ▇▇▇▇▇▇▇ Earnout Payment may be made as and when due pursuant to the terms of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerthe Purchase Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, except as followsthat:
(a) each Company Group Party may make Restricted Payments to the Borrower, or to any other Person that owns a direct Equity Interest in such Company Group Party, ratably according to their respective holdings of the type of Equity Interests in respect of which such Restricted Payment is being made;
(ib) Borrowers the Borrower and each Company Group Party may pay dividends declare and make dividend payments or other distributions payable solely in shares of capital the common stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms common Equity Interests of such shareholder rights planPerson;
(c) any the Borrower and each Company Group Party may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(d) the Borrower may make Restricted Payments declare and pay dividends in cash or Cash Equivalents to Holdings not to exceed an amount necessary to permit Holdings and Parent to pay (i) reasonable and customary corporate (including appropriate allocations of shared costs and expenses of the corporate group of the Equity Investor) and operating expenses (including reasonable out-of-pocket expenses for legal, administrative and accounting services provided by third parties, umbrella insurance costs, and compensation, benefits and other amounts payable to officers and employees in connection with or pursuant to any their employment in the ordinary course of its (ibusiness) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) so long as the Borrower is properly treated as a disregarded entity and Holdings is properly treated as a partnership for U.S. federal and applicable state and local income tax purposes, distributions to repurchase Equity Securities Holdings which distributions shall be used by its equity holders to discharge the relevant U.S. federal, state and local income tax liabilities of a Borrower which a shareholder is selling whether such repurchase is equity holders attributable to the Borrower; provided that the amount of any distribution pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and this clause (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum amount that the Borrower would be required to pay in respect of $100,000 in the aggregate over relevant U.S. federal, state and local income taxes were it to pay such taxes as a stand alone corporate taxpayer, taking into account any net operating loss carryovers and other tax attributes arising from the life of this AgreementClosing Date; provided, further, that the provisions of any distribution pursuant to this clause (ii) shall be used to discharge the relevant tax liability of each such equity owner within 90 days of the distribution;
(e) the Borrower and each Company Group Party may issue common Equity Interests to a Loan Party or, in the case of a Company Group Party, another Company Group Party, in each case that is its direct parent;
(f) so long as no Default has occurred and is continuing or would result from such Restricted Payment, the Borrower may declare and pay dividends in cash or Cash Equivalents to Holdings from Available Cash that is not being used to support Other Permitted Guarantees as contemplated by clause (b) of the definition thereof pursuant to Section 7.02(j)(iv) or 7.03(e); provided that immediately after giving effect to such dividend payment or other distribution, the Borrower shall be in pro forma compliance with all of the covenants set forth in Section 7.11;
(g) the Borrower may declare and pay dividends in cash or Cash Equivalents to Holdings not restrict any Subsidiary from declaring to exceed an amount necessary to permit Holdings and Parent to pay franchise fees or paying similar taxes and fees required to maintain its corporate existence;
(h) the Borrower may make Restricted Payments pursuant to the Exchange Agreement;
(i) to the extent constituting a Restricted Payment, the Borrower may make Restricted Payments as required pursuant to the Management Services Agreement to (i) pay monitoring, consulting, management, transaction, advisory, termination or similar fees payable to the Equity Investor and indemnities, reimbursements and reasonable and documented out-of-pocket fees and expenses of the Equity Investor in connection therewith and (ii) reimburse the Equity Investor for costs and expenses of Holdings and its Subsidiaries incurred in the ordinary course of business, overhead costs and expenses and fees (including administrative, legal, accounting, insurance, cash management, reporting and compliance and/or similar expenses provided by third parties as well as trustee, directors, managers and general partner fees) which are paid by the Equity Investor on behalf of Holdings or its applicable Subsidiary; and
(i) the Borrower shall be permitted to make payments of principal and interest under the Parent CSN Proceeds Loan so long as the proceeds thereof are directly used to make corresponding payments of principal, interest and other amounts due and payable under the Convertible Senior Notes or (ii) the Borrower may declare and pay dividends to any Borrower or Holdings so as to any wholly owned Subsidiary enable Holdings to satisfy demands made against Holdings under the unsecured guarantee of BorrowerHoldings of the Indebtedness represented by the Convertible Senior Notes.
Appears in 2 contracts
Sources: Senior Secured Bridge Credit Agreement (Clearway Energy LLC), Senior Secured Bridge Credit Agreement (Clearway Energy, Inc.)
Restricted Payments. Make The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentsPayment, except that, so long as followsno Default or Event of Default exists or would result therefrom:
(a) (i) Borrowers the Borrower may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in additional units or shares of capital stock of any Borrower or any Subsidiary or its Equity Interests (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsDisqualified Capital Stock);
(b) any Subsidiaries of the Borrower may distribute rights pursuant declare and pay dividends to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance Loan Parties ratably with respect to the terms ownership of such shareholder rights plantheir Equity Interests;
(c) any the Borrower may make Restricted Payments a distribution to Parent on any Tax Distribution Date equal to the Tax Distribution Amount;
(d) Vista Sand and the Borrower may consummate the Proppants To Go Distribution on the Effective Date; provided that, prior to the effectiveness of the Proppants To Go Distribution, the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying that Proppants To Go owns no Property other than a U.S. Department of Transportation license number described in connection with or pursuant such certificate and the right to use the name “Proppants To Go”;
(e) the Borrower may make distributions on the Effective Date necessary to consummate the Specified Equity Transactions in an amount not to exceed $85,000,000; and
(f) the Borrower may make distributions to Parent in order to enable Parent to pay management fees not to exceed $3,000,000 in the aggregate during any of its calendar year to (i) Employee Benefits Plans or in connection with GBH Properties LLC, a Texas limited liability company on account of services provided to and on behalf of the employmentBorrower and its Subsidiaries pursuant to that certain Management Services Agreement, termination or compensation dated as of its service providersMay 1, employees2017, officers or directorsamong GBH Properties LLC, Parent and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and (ii) M&J Partnership, Ltd., a Texas limited partnership on account of services provided to repurchase Equity Securities and on behalf of a the Borrower which a shareholder is selling whether such repurchase is and its Subsidiaries pursuant to a repurchase right or otherwisethat certain Management Services Agreement, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined dated as of the fiscal quarter immediately preceding the date of determination; May 1, 2017, among M&J Partnership, Ltd., Parent and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Vista Proppants & Logistics Inc.), Senior Secured Credit Agreement (Vista Proppants & Logistics Inc.)
Restricted Payments. Make The Company shall not declare or make any Restricted PaymentsPayment, except as followsexcept:
(a) (i) Borrowers may pay dividends Restricted Payments made in connection with the defeasance, redemption or other distributions payable solely in shares of capital stock repurchase of any Borrower or any Subsidiary or Indebtedness with the Net Cash Proceeds of Permitted Refinancing Indebtedness; and
(ii) a Restricted Payments of any Subsidiary may pay dividends or other distributions of the Company to any Borrower the Company or to another Subsidiarywholly-owned Subsidiary of the Company; and
(iii) Restricted Payments made in connection with claims for reimbursement, indemnification or contribution arising out of or related to the Asset Purchase Agreement; and
(iv) any Restricted Payment that constitutes a payment in respect of a purchase price adjustment, earn-out or other similar form of contingent purchase price in connection with any Acquisition (including the IITRI Acquisition) consummated on or before the Closing Date as set forth on Exhibit 10.3(f) and any Permitted Acquisition; and
(v) Restricted Payments that constitute payments of principal, interest, premium, fees, expenses or other amounts due on the Securities pursuant to this Agreement and the other Operative Documents, and Restricted Payments that constitute mandatory payments of principal, interest, premium, fees or expenses due on or under the Seller Note Securities Purchase Agreement, the Seller Notes or the Seller Warrants or the other Operative Documents (as defined in the Seller Note Securities Purchase Agreement), in each case subject to the terms of the Subordination Agreements and any restrictions provided in the documents for such Indebtedness; and
(vi) Restricted Payments made (v) in connection with the redemption or repurchase for value of any Capital Stock of the Company as a result of distributions by the ESOT of such Capital Stock to participants in the ESOP pursuant to the ESOP Plan Documents subsequent to their termination of employment with the Company or any Controlled Group member, (w) as required by Section 401(a)(28) of the Code or any substantially similar Requirement of Law, (x) in good faith and belief by the Company to be made with respect to the payments described in the preceding clauses (v) or (w) but which do not so qualify for the status described in the preceding clauses (v) or (w) on account of administrative error or mistake, provided that the total such payment would not otherwise result in a Default or Event of all Default hereunder and either (A) such dividends or other distributions to Subsidiaries which are payments do not Guarantors shall not collectively exceed $300,000 over 250,000 during the life period from the Closing Date through the date of such payment or (B) such payment is recovered by the Company within thirty (30) days thereof and the Company's books and records are accordingly adjusted to reflect such recovery, together with all other such payments under this subclause (B), do not collectively exceed $1,000,000 during the period from the Closing Date through the date of such payment, or (y) in the form of administrative fees or expenses of the ESOP or the ESOT including, without limitation, the fees of the ESOT Trustee or (z) as contributions to the ESOT as required under the ESOP Plan Documents; and
(vii) Restricted Payments made in connection with stock appreciation rights plans, phantom stock plans and other equity-based incentive compensation arrangements or plans to the extent such payments would not be in violation of the terms of this AgreementAgreement or any other Operative Document. provided, and provided further however, that if in no event shall any Restricted Payments (other than (1) to the Company, (2) as permitted by clause (ii) above, (3) Restricted Payments (x) resulting from distributions by the ESOT to participants in the ESOP pursuant to the ESOP Plan Documents subsequent to the termination by participants in the ESOP of employment with the Company or any Controlled Group member or (y) as required by Section 401(a)(28) of the Code or any substantially similar Requirement of Law, and (4) Restricted Payments resulting from contributions to the ESOT as required under the ESOP Plan Documents) be declared or made if either a Default or an Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases declaration or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreementpayment thereof or would result therefrom; provided, further, that the provisions of this in no event shall any Restricted Payment be permitted under clause (f)v) above with respect to the Seller Notes, Seller Warrants or other Operative Documents (as defined in the Seller Note Securities Purchase Agreement) unless the Company shall not restrict any Subsidiary from declaring or paying dividends have delivered to any Borrower or the holders of the Notes a compliance certificate in substantially the form of Exhibit 10.1(a)(iv)(b) hereto for the most recently completed fiscal quarter calculated giving effect to any wholly owned Subsidiary such Restricted Payment as of Borrower.the last day of such prior fiscal quarter and certifying that the Company is in compliance with the financial covenants in section 10.4 as of the last day of such prior fiscal quarter. -38-
Appears in 2 contracts
Sources: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp), Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Restricted Payments. Make Make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (including contingent obligations to the extent the satisfaction of the contingencies is solely under the control of the Borrower or any of its Subsidiaries) to do so, except as followsthat:
(a) each Loan Party may declare and make Restricted Payments to any other Loan Party, and each Subsidiary that is not a Loan Party may declare and make Restricted Payments to any other Subsidiary that is not a Loan Party;
(ib) Borrowers the Borrower and each Subsidiary may pay dividends declare and make dividend payments or other distributions Restricted Payments payable solely in shares Equity Interests (other than Disqualified Equity Interests) of capital stock such Person;
(c) the Borrower and any Subsidiary may make cash dividends, distributions or other Restricted Payments paid on the Equity Interests of any the Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another such Subsidiary; provided that provided, for the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life purpose of this Agreement, and provided further clause (c) that if (1x) a no Default or Event of Default shall have has occurred and is continuing at the time such dividend, distribution or other Restricted Payment is declared or paid and (y) with respect to distributions by the Borrower, the Loan Parties shall be continuing or (2) the Leverage Ratio (determined in compliance at such time on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsPro Forma Basis with the financial covenants set forth in Section 8.11;
(bd) any the Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights planmake Permitted Tax Distributions;
(ce) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans (x) Wyoming may make a one-time Restricted Payment to Wyoming Co. of $11,500,000 and (y) Wyoming Co. may make a Restricted Payment of all or a portion of the proceeds of such Wyoming Co. Dividend to its equityholders (which proceeds may subsequently be paid or transferred pursuant to Restricted Payments by such equityholders (and each successive holder thereabove) until a Restricted Payment of such proceeds are made to Persons who hold Equity Interests in connection with the employmentBorrower or Wyoming Co.) (collectively, termination or compensation of its service providers, employees, officers or directorsthe “Wyoming Co. Dividend”), and (ii) (w) Wyoming may make a one-time Restricted Payment to repurchase Equity Securities its equityholders of $91,500,000 on or before July 23, 2013, (x) the Borrower may make a Borrower Restricted Payment of all or a portion of the proceeds of such Special Dividend to OCI Holdings and (y) OCI Holdings may make a Restricted Payment of all or a portion of the proceeds of such Special Dividend to Chemical (which a shareholder is selling whether such repurchase is pursuant proceeds may subsequently be paid, distributed or transferred by Chemical to a repurchase right or otherwiseits direct and/or indirect equityholders) (collectively, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations“Special Dividend”); and Adesto Technologies Corporation Credit Agreementand
(df) any Subsidiary of any the Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as a Restricted Payment of the fiscal quarter immediately preceding proceeds from the IPO to the holder of Equity Interests of the Borrower (which proceeds may subsequently be paid, distributed or transferred by such holder to its direct and/or indirect equityholders) in each case made within sixty (60) days after the date of determination; and the IPO (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e)collectively, the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f“IPO Distribution”), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (OCI Resources LP)
Restricted Payments. Make The Trust shall not, and shall not permit any of its Subsidiaries to, declare or make any Restricted Payments, except as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a GuarantorPayment; provided, however, that this clause the Trust and its Subsidiaries may declare and make the following Restricted Payments so long as no Default or Event of Default would result therefrom:
(a) shall the Operating Partnership may make cash distributions to the Trust and other holders of partnership interests in the Operating Partnership with respect to any fiscal year ending during the term of this Agreement to the extent necessary for the Trust to make, and the Trust may so make, cash distributions to its shareholders in an aggregate amount not restrict dividends to exceed the greater of (i) the amount required to be distributed for the Trust to maintain its status as a REIT or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors(ii) 90.0% of Funds From Operation;
(b) any Borrower the Trust may distribute rights pursuant make cash distributions to a shareholder rights plan or redeem its shareholders of capital gains resulting from gains from certain asset sales to the extent necessary to avoid payment of taxes on such rights, provided that such redemption is in accordance with asset sales imposed under Sections 857(b)(3) and 4981 of the terms of such shareholder rights planInternal Revenue Code;
(c) any Borrower or any Subsidiary may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with acquire the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities Interests of a Borrower which Subsidiary that is not a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementWholly Owned Subsidiary;
(d) any Subsidiary (other than the Operating Partnership) 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 Trust or any other Subsidiary; and
(f) An Operating Partnership or the Trust, as applicable, may exchange Equity Interest in such Operating Partnership for Equity Interests in the Trust. Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default exists, the Operating Partnership may only make cash distributions to the Trust and other holders of partnership interests in the Operating Partnership, and the Trust may distribute to its shareholders such cash distributions received from the Operating Partnership, during any fiscal year in an aggregate amount not to exceed the minimum amount necessary for the Trust to maintain its status as a REIT. If a Default or Event of Default specified in Section 10.1.(a), Section 10.1.(b), Section 10.1.(f) or Section 10.1.(g) shall exist, or if as a result of the occurrence of any Borrower may declare or pay other Event of Default any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Obligations have been accelerated pursuant to Section 7.06(e10.2.(a), the total of all such dividendsTrust shall not, purchases or redemptions and shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict permit any Subsidiary from declaring or paying dividends to, make any Restricted Payments to any Borrower Person other than to the Trust or to any wholly owned Subsidiary of BorrowerSubsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Lexington Corporate Properties Trust), Credit Agreement (Lexington Master Limited Partnership)
Restricted Payments. Make 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 PaymentsPayment, except as follows:return any capital to its stockholders or make any distribution of its Property to its Equity Interest holders, except
(a) (i) Borrowers the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(ii) Subsidiaries may declare and pay dividends or any other distributions payable solely in shares of capital stock of any to the Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions Guarantor with respect to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorstheir Equity Interests;
(biii) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with stock option plans or pursuant to any other benefit plans for management or employees of the Borrower and its Subsidiaries;
(iiv) Employee Benefits Plans or the Borrower may make Restricted Payments in connection with the employment, termination or compensation of its service providers, directors’ or employees, officers ’ option agreement or directors, and (ii) to repurchase Equity Securities restricted stock agreements under any of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, Borrower’s incentive stock plans; provided, however, that with the aggregate amounts paid in respect to (c)(ii) above, such Restricted Payments may thereof do not exceed $1,000,000 2,500,000;
(v) after January 1, 2023, the Borrower may make Restricted Payments so long as, after giving effect thereto, the Payment Conditions are satisfied; and
(vi) so long as no Event of Default has occurred and is continuing, the Borrower may make Restricted Payments to the extent necessary to permit Holdings:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses ) and franchise Taxes, and similar fees and expenses required to maintain the organizational existence of Holdings, in each case, which are reasonable and customary and incurred in the aggregate at ordinary course of business, plus any time there are Outstanding Obligations; reasonable and Adesto Technologies Corporation Credit Agreementcustomary indemnification claim made by any director, officer, member of management, manager, employee and/or consultant of Holdings, in each case, to the extent attributable to the ownership or operations of Holdings and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries);
(dB) to discharge the consolidated, combined, unitary or similar U.S. federal, state or local Tax liabilities of Holdings and its subsidiaries when and as due, to the extent such liabilities are directly attributable to the income of the Borrower and/or any Subsidiary of the Borrower; provided that the amount of any Borrower may declare or pay any ratable dividends such payment in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) taxable year does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases Taxes that the Borrower and/or its applicable Subsidiary would have paid as standalone companies or as a standalone group taking into account any available deductions, losses and credits;
(C) to pay audit and other accounting and reporting expenses of Equity Securities made under Section 7.06(e)Holdings to the extent such expenses are attributable to the Holdings and/or its subsidiaries (but excluding, for the avoidance of doubt, the total portion of all any such dividendsexpenses, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, furtherif any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries);
(D) to pay any insurance premium that is payable by, or attributable to, Holdings and/or its subsidiaries that is payable by Holdings (but excluding, for the avoidance of doubt, the portion of any such premium, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries);
(E) to pay (x) reasonable fees and expenses related to any debt and/or equity offering, investment and/or acquisition (whether or not consummated) permitted hereunder and (y) charges related to compliance with the provisions of this clause the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended; and
(fF) to pay reasonable and customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of Holdings to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its Subsidiaries, in the case of each of the foregoing clauses (A) through (F), shall not restrict so long as Holdings applies the amount of any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowersuch Restricted Payment for such purpose.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Battalion Oil Corp), Senior Secured Credit Agreement (Battalion Oil Corp)
Restricted Payments. Make Declare, order, pay or make any Restricted PaymentsPayment (other than dividends payable solely in common stock of the Person making such dividend) except that, except as followswithout duplication:
(a) each Restricted Subsidiary may make Restricted Payments to the Borrower and other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower, any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on its relative ownership interests of the relevant class of Equity Interests);
(b) subject to compliance with the Approved Budget, the Borrower may make Restricted Payments:
(i) Borrowers may pay dividends to (1) purchase its Equity Interests from present or other distributions payable solely in shares former officers, directors, employees or consultants of capital stock the Borrower or Subsidiary upon the death, disability or termination of employment or services of such individual, (2) purchase, redeem or otherwise acquire any Equity Interests from employees, officers, directors and consultants of the Borrower or any Subsidiary by net exercise, net settlement, net withholding or otherwise, pursuant to the terms of any employee stock option, incentive stock or other equity-based plan or arrangement, and (3) consummate ordinary course net settlements made pursuant to its equity incentive program as in effect on the Closing Date;
(ii) the proceeds of which shall be used by a parent entity to pay its operating 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 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of the Borrower attributable to the ownership or operations of its Restricted Subsidiaries;
(iii) the proceeds of which shall be used by the Borrower to pay franchise or similar taxes and other fees and expenses required to maintain its corporate existence;
(iv) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operations of its Restricted Subsidiaries; and
(v) to allow any parent entity of the Borrower to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by any parent entity of the Borrower that is directly attributable to the ownership or operations of the Borrower and its Subsidiaries.
(c) [reserved];
(d) for any taxable period for which the Borrower or any Subsidiaries of the Borrower are members of a consolidated, combined, unitary, or similar income tax group for federal and/or applicable state or local income tax purposes or are entities treated as disregarded from any such members for U.S. federal income Tax purposes (a “Tax Group”) of which the Borrower, any direct or indirect parent company of the Borrower or any Subsidiary is the common parent, the Borrower and the Borrower’s Subsidiaries may pay make dividends or other distributions, directly or indirectly, to the Borrower or any Subsidiary (and the Borrower may make such dividends or other distributions to any direct or indirect parent company of the Borrower) to permit the parent of the Tax Group to pay any consolidated, combined or similar income Taxes of such Tax Group that are due and payable by the parent of such Tax Group for such taxable period, but only to the extent attributable to the Borrower or to another Subsidiaryand/or Subsidiaries of the Borrower; provided that (x) the total amount of all such dividends or other distributions permitted to Subsidiaries which are not Guarantors be made under this Section 6.4(d) for any taxable period shall not exceed $300,000 over the life lesser of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2A) the Leverage Ratio amount of such Taxes that would have been due and payable by the Borrower and/or the applicable Subsidiaries of the Borrower had the Borrower and/or such Subsidiaries of the Borrower, as applicable, been a stand-alone corporate taxpayer (determined on or a pro forma basis after giving effect stand-alone corporate Tax Group) and (B) the actual Tax liability of the Borrower for such taxable period, (y) to the extent that such transactionTaxes are attributable to Subsidiaries of the Borrower that are not Credit Parties, such Taxes must be funded by such Subsidiaries and (z) is greater than 2.00 if the Borrower receives a refund from a Governmental Authority in respect of any amounts paid pursuant to 1.00this Section 6.4(d), no such dividends or other any subsequent distributions pursuant to this Section 6.4(d) shall be paid reduced by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsthe amount of such refund;
(be) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan[reserved];
(cf) any [reserved]; and
(g) subject to the prior written consent of the Required Lenders, the Borrower may make Restricted Payments in connection with consisting of the cashless exercise of options and warrants of the Equity Interests of the Borrower or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerSubsidiaries.
Appears in 2 contracts
Sources: Restructuring Support Agreement (2U, Inc.), Debt and Guaranty Agreement (2U, Inc.)
Restricted Payments. Make The Company shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, make any Restricted Payments, except ; provided that the following Restricted Payments shall be permitted so long as followsno Default or Event of Default has occurred and is continuing or would occur or result from such Restricted Payments:
(a) (i) Borrowers may pay dividends or other distributions Restricted Payments payable solely in shares of capital stock of any Borrower or any Subsidiary Company’s Qualified Stock or (ii) a Subsidiary may pay dividends any equity or equity-based award, warrant or other distributions right to acquire any Borrower or such Qualified Stock (and any Restricted Payments pursuant to another Subsidiary; provided that the total of all such dividends awards, warrants, or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsrights);
(b) (i) each Subsidiary may make Restricted Payments to the Company and to any Borrower may distribute rights pursuant other Subsidiaries that are not Excluded Subsidiaries (and, in the case of a payment by a non-wholly owned Subsidiary, to a shareholder rights plan the Company or redeem any such rights, provided other Subsidiaries that such redemption is in accordance with the terms are not Excluded Subsidiaries) and to each other owner of Stock of such shareholder rights planSubsidiary (that is not an Excluded Subsidiary) ratably according to their relative ownership interests of the relevant class of Stock or as otherwise required by the applicable Organizational Documents and (ii) any Excluded Subsidiary may make Restricted Payments to any other Excluded Subsidiary;
(c) Repurchases, retentions, or other acquisitions of Qualified Stock that occur or are deemed to occur in connection with the vesting, exercise, or settlement of equity or equity-based awards or warrants or other securities convertible into or exchangeable for Qualified Stock if such repurchase, retention, or other acquisition of Qualified Stock represents payment of any Borrower portion of the exercise price of such awards, warrants or securities pursuant to a “cashless exercise” or similar feature or any portion of the amount necessary to satisfy tax withholding obligations;
(d) the Company or any Subsidiary may receive or accept the return to the Company or any Subsidiary of Stock of the Company constituting a portion of the purchase price consideration in settlement of indemnification claims in connection with a Permitted Acquisition;
(e) Restricted Payments constituting cash payments made in lieu of issuance of fractional shares;
(f) purchases, redemptions, retirements or other acquisitions of Qualified Stock (i) held by current or former directors, officers, employee or consultants (or their transferees, estates or beneficiaries under their estates) of the Note Parties and any Subsidiaries in an aggregate amount not to exceed, in any fiscal year, $1,000,000, with unused amounts in any fiscal year (the “Unused Amounts”) being carried over solely to the immediately succeeding fiscal year, and the Unused Amounts shall be deemed to be available and used solely after the use in full of the amount available to be used for such immediately succeeding fiscal year without the inclusion of the Unused Amounts;
(g) the Company may make Restricted Payments in connection with or pursuant to any the retention of its (i) Employee Benefits Plans or Equity Interests constituting Qualified Stock in payment of withholding taxes in connection with equity-based compensation plans; and
(h) the employmentCompany’s purchase, termination redemption, retirement or compensation other acquisition of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities Stock with the proceeds received from a substantially concurrent issue of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem new shares of its Qualified Stock or from cash proceeds received solely from the settlement of Permitted Equity Securities or make distributions to shareholders not Derivatives. Except as otherwise permitted hereunderprovided in Section 8(g) of the Exchange Agreement, provided that none of (iw) the aggregate amount paid or distributed in any period issuance of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as new shares of the fiscal quarter immediately preceding Company’s Qualified Stock, or the date application of determination; cash proceeds received from a Permitted 2025 Notes Refinancing or the settlement of Permitted Equity Derivatives, to consummate the conversion, exercise, repurchase, redemption, settlement, unwinding or early termination or cancellation of (whether in whole or in part and including by netting or set-off) the 2025 Notes or any Permitted 2025 Notes Refinancing thereof (in each case, (A) to the extent not prohibited by the terms of the 2025 Notes, any Permitted 2025 Notes Refinancing thereof or any Permitted Equity Derivatives, as applicable and (iiB) when combined upon the satisfaction of any condition that would permit or require any of the foregoing), (x) the issuance of or the performance of obligations under (including any payments of interest) the 2025 Notes in accordance with the amount of all purchases of terms thereof, (y) any Permitted 2025 Notes Refinancing thereof or (z) any Permitted Equity Securities made under Derivatives and any settlement, unwinding or early termination or cancellation thereof, shall be prohibited by this Section 7.06(e)4.26, the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life any other provision of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict Agreement or any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerother Note Document.
Appears in 2 contracts
Sources: Indenture (NanoString Technologies Inc), Indenture (NanoString Technologies Inc)
Restricted Payments. Make (a) The Borrower shall not and shall not permit any of the Restricted Subsidiaries to declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except as followsthat:
(a) (i) Borrowers the Borrower and each Restricted Subsidiary may declare and pay dividends or other distributions payable solely in shares the common partnership interests, common stock, or other common equity interests of the Borrower or such Restricted Subsidiary, provided that Borrower’s interest in such Restricted Subsidiary is not diminished thereby (other than Disqualified Interests);
(ii) each Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries that are Guarantors (and, in the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the Borrower and any such Subsidiary and also to each other owner of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that Equity Interests of the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined payor Subsidy on a pro forma rata basis after giving effect to such transactionbased on their relative ownership interests);
(iii) the Borrower and each Restricted Subsidiary that is greater than 2.00 to 1.00a Guarantor may purchase, no such dividends redeem or otherwise acquire shares of its common stock or other distributions 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 common stock or other common equity interests (other than Disqualified Interests); and
(iv) the Borrower and each Restricted Subsidiary may declare and make Restricted Payments in addition to those listed above if, both before and after the declaration and the making thereof, all of the following conditions are satisfied:
(A) The representations and warranties of the Borrower and the General Partner contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be paid by any Guarantor true and correct in all material respects on and as of the date of such Restricted Payment, except to any Subsidiary the extent that such representations and warranties specifically refer to an earlier date, in which is not also a Guarantor; providedcase they shall be true and correct in all material respects as of such earlier date, howeverand except that for purposes of this Section 7.09, that this clause the representations and warranties contained in subsections (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;and 068800 000057 DALLAS 1872243.4
(b) any Borrower may distribute rights of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
clauses (ca) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total respectively, of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerSection 6.01.
Appears in 2 contracts
Sources: Credit Agreement (Ferrellgas Finance Corp), Credit Agreement (Ferrellgas Partners Finance Corp)
Restricted Payments. Make Declare or make any Restricted Payment or incur any obligation (contingent or otherwise) to do so unless (a) at the time when any such Restricted Payment is to be made, no Default or Event of Default exists or would result therefrom and (b) after giving effect to the making of such Restricted Payment, Borrowers would be in compliance with the requirements of Section 7.16, on a pro forma basis, determined as of the last day of the last Fiscal Quarter of Borrowers for which Borrowers have provided financial statements and the corresponding Compliance Certificate to the Administrative Agent and Lenders as if such Restricted Payment had been paid during such Fiscal Quarter, a Responsible Officer of Borrowers shall have certified to the Administrative Agent and Lenders as to compliance with the preceding clause (b) in a certificate attaching calculations; provided, however, (i) a Subsidiary of a Loan Party may declare and pay dividends ratably with respect to such Subsidiary’s Equity Interests, (ii) Borrowers may make Restricted Payments, except not exceeding $2,000,000 during any Fiscal Year pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Borrowers, (iii) the Borrowers may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrowers held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Loan Party or make Restricted Payments in the form of distributions to allow the Borrowers to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Borrowers in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests of the Borrowers held by such Persons; provided that the aggregate amount of Restricted Payments pursuant to this clause (iii) shall not exceed $1,000,000; (iv) so long as follows:
(a) (i) there exists no Default or Event of Default, Borrowers may pay dividends or other make distributions payable solely to its shareholders or members, as applicable, in shares an aggregate amount not greater than the amount necessary for such shareholders or members to pay their actual state and United States federal income tax liabilities in respect of capital stock of income earned by Loan Parties after deducting any Borrower or any Subsidiary or unused prior losses; (iiv) a Subsidiary Borrowers may pay dividends or other distributions management fees pursuant to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Management Services Agreement as long as no Default or Event of Default shall exists or would result therefrom and Borrowers have occurred and be continuing or (2) cash, Cash Equivalents and/or unused availability under the Leverage Ratio (determined on a pro forma basis Revolving Credit Facility of at least $20,000,000 in the aggregate after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determinationpayment; and (iivi) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases Borrowers may declare and make dividend payments or redemptions shall not exceed the sum of $100,000 other Restricted Payments payable solely in the aggregate over the life form of this Agreement; provided, further, that the provisions common Equity Interests of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowersuch Person.
Appears in 2 contracts
Sources: Credit Agreement (Construction Partners, Inc.), Credit Agreement (Construction Partners, Inc.)
Restricted Payments. Make Such 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 PaymentsPayment, except as follows:
(a) long as no Event of Default has occurred and is continuing or would result therefrom, (i) Borrowers WPZ may pay dividends or other distributions payable solely make Restricted Payments of Available Cash (as defined in shares of capital stock of the Partnership Agreement) with respect to any Borrower or any Subsidiary or Quarter (as defined in the Partnership Agreement), (ii) a Subsidiary each of NWP and TGPL and their respective Subsidiaries may pay dividends make Restricted Payments to WPZ and its Subsidiaries, (iii) WPZ and its Subsidiaries may make payments or other distributions to officers, directors or employees with respect to the exercise by any Borrower or to another Subsidiary; provided that the total such Persons of all such dividends options, warrants or other distributions rights to acquire Equity Interests in WPZ or such Subsidiary issued pursuant to an employment, equity award, equity option or equity appreciation agreement or plans entered into by WPZ or such Subsidiary in the ordinary course of business, (iv) WPZ may reimburse the General Partner for expenses pursuant to the Partnership Agreement and (v) TGPL and NWP and their Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreementmay distribute cash to WPZ in connection with their participation in WPZ’s cash management program; provided, and provided further that even if (1) a Default or an Event of Default shall have occurred and be continuing or is continuing, (2A) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from each of NWP and TGPL and their respective Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection to WPZ and its Subsidiaries so long as, with or pursuant respect to any such Borrower or its respective Subsidiaries, there is no Credit Exposure of its (i) Employee Benefits Plans or in connection any Lender with the employment, termination or compensation of its service providers, employees, officers or directorsrespect to such Borrower, and (iiB) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any no Subsidiary of any Borrower shall be prohibited from upstreaming dividends or other payments to such Borrower or any Subsidiary of such Borrower or making, in the case of any Subsidiary of such Borrower that is not wholly-owned (directly or indirectly) by such Borrower, dividends or payments, as the case may declare or pay any ratable dividends be, to the other owners of Equity Interests in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determinationsuch Subsidiary; and provided, further, that, any dividends or payments by any such Subsidiary that is not wholly-owned (iidirectly or indirectly) when combined with by a Borrower to such Borrower shall be not less than an amount equal to (x) WPZ’s direct or indirect percentage ownership of Equity Interests in such Subsidiary times (y) the amount of all purchases such dividends and payments made to all owners of Equity Securities made under Section 7.06(e), the total of all Interests in such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerSubsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Williams Pipeline Partners L.P.), Credit Agreement (Williams Partners L.P.)
Restricted Payments. Make Neither the Borrower nor any of its Restricted Subsidiaries shall declare or make any Restricted PaymentsPayment, except as followsexcept:
(i) the Borrower may make (a) payments to Holdings sufficient to fund Holdings' payments under the Jordan Management Agreement as in effect as of the Closing Date for (i1) Borrowers may pay dividends or other distributions payable solely in shares consulting, financial, management and investment banking fees plus (2) out of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; pocket expenses and indemnities, provided that the total obligations in respect of all such dividends or other fees under the Jordan Management Agreement shall be subordinated expressly to the Secured Obligations and (b) distributions to Subsidiaries which are Holdings sufficient to fund Holdings' payment of directors' fees and indemnities (whether or not Guarantors Holdings applies the funds to the payment of such directors' fees) provided that such Restricted Payments shall not exceed $300,000 over 150,000 plus out of pocket expenses in any fiscal year of the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsBorrower;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwiseso long as Holdings files consolidated income tax returns that include the Borrower, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in on the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter Business Day immediately preceding the date on which Holdings shall be required to make any tax related payment to any Governmental Authority, the Borrower may make distributions to Holdings to fund Holdings' payment of determination; and (ii) when combined with tax obligations, from funds legally available for such purpose, in an amount not to exceed the amount of all purchases of Equity Securities made under Section 7.06(e)calculated pursuant to the Tax Sharing Agreement attached hereto as Exhibit P; provided, the total of all Holdings shall in turn utilize such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreementamount thereof as is necessary to pay its consolidated tax obligations; provided, further, that after the provisions occurrence and during the continuance of any Default or Unmatured Default, the amount permitted to be paid to Holdings shall not exceed the lesser of (1) the amount calculated pursuant to the Tax Sharing Agreement, (2) the "Consolidated Tax" (as defined in the Tax Sharing Agreement as in effect on the Closing Date) and (3) the "Calculated Tax" of the "Acquisition Group" (each as defined in the Tax Sharing Agreement as in effect on the Closing Date); and provided, further, any amount otherwise permitted to be paid under this clause (f), ii) shall not restrict be reduced by the amount of any tax related payments made directly by the Borrower or any Subsidiary from declaring or paying dividends to any Governmental Authority.
(iii) the Borrower may make distributions to Holdings to fund (a) payments required to be made by and actually made by Holdings in respect of interest due on an unaccelerated basis on the Holdings Subordinated Debt, unless such payments are prohibited by the subordination terms applicable to such Indebtedness; provided, however, the Borrower may make such distributions with respect to the Holdings Subordinated Debt only on March 1 and September 1 of each year (or the Business Day immediately prior thereto if such date is not a Business Day); (b)
(1) payments made by Holdings to repurchase its common stock made pursuant to Section 7.2, 7.3 or 7.4 of the Stockholders Agreement as in effect on the Closing Date and (2) payments required to be made by and actually made by Holdings in respect of amounts due on an unaccelerated basis on the Repurchase Indebtedness unless such payments are prohibited by the subordination terms applicable to such Repurchase Indebtedness in an aggregate amount for all such payments under clauses (1) and (2) not to exceed $4,000,000, such distributions to be made not earlier than one Business Day prior to the date on which Holdings is to make such payments; provided, that, Holdings shall first satisfy any such payment obligation by canceling Indebtedness under the Management Note, if any, of the Person to whom Holdings is obligated to make such payment; and (c) mandatory payments of dividends due on the Preferred Stock to the extent Indebtedness for such payments is Permitted Holdings Indebtedness under clause (c) of the definition thereof, such distributions to be made not earlier than one Business Day prior to the date on which Holdings is required to make such payments;
(iv) the Borrower may make payments to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or to Holdings sufficient to make payment of amounts due under the Employment Agreements without taking into account any amendment, modification, supplement or restatement thereof or the adjustment of any such amount pursuant to the terms thereof resulting from a change of facts and circumstances after the date of this Agreement (other than increases in base salary approved pursuant to Section 2 of the Employment Agreement) unless the Agent and the Required Lenders shall have consented to the terms thereof if the effect of such amendment, modification, supplement, restatement or adjustment is to increase the amount or accelerate the time of payment of such amounts;
(v) the Borrower may make mandatory payments of interest, principal or premium, if any, when due on the Permitted Subordinated Indebtedness unless such payments are prohibited by the terms of such Indebtedness or the subordination agreements related thereto;
(vi) any Restricted Subsidiary may make distributions to the Borrower or to a Restricted Subsidiary;
(vii) the Borrower or any wholly owned Restricted Subsidiary may defease, redeem or repurchase Permitted Subordinated Indebtedness with the net cash proceeds from an issuance of Permitted Refinancing Indebtedness;
(viii) any Restricted Subsidiary may defease, redeem or repurchase Permitted Subordinated Indebtedness with the net cash proceeds from the substantially concurrent sale (other than to the Borrower or any subsidiary of the Borrower.) of Equity Interests of such Restricted Subsidiary (other than Redeemable Stock);
(ix) payments in connection with the Stock Acquisition and related financing transactions as described under the "The Transactions" and "Use of Proceeds" provisions contained in the Offering Memorandum;
Appears in 2 contracts
Sources: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)
Restricted Payments. Make Neither Borrower nor any of its Restricted Subsidiaries shall, directly or indirectly, declare or make any Restricted PaymentsPayment at any time, except as followsexcept, without duplication:
(a) Borrower or any Restricted Subsidiary may make Restricted Payments to the extent permitted pursuant to Section 2.09(b)(ii);
(b) any Restricted Subsidiary of Borrower may declare and make Restricted Payments to Borrower or any Wholly Owned Subsidiary of Borrower which is a Restricted Subsidiary;
(c) any Restricted Subsidiary of Borrower, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, may declare and make Restricted Payments in respect of its Equity Interests to all holders of such Equity Interests generally so long as Borrower or its respective Restricted Subsidiary that owns such Equity Interest or interests in the Person making such Restricted Payments receives at least its proportionate share thereof (based upon its relative ownership of the subject Equity Interests and the terms thereof);
(d) Borrower and its Restricted Subsidiaries may (i) Borrowers may pay dividends or other distributions payable solely make Restricted Payments in shares of capital stock of any Borrower or any Subsidiary or connection with the ▇▇▇▇ Group Reorganization and (ii) a Subsidiary engage in transactions to the extent permitted by Section 10.04 and Section 10.05;
(e) Borrower and its Restricted Subsidiaries may pay dividends make Restricted Payments in respect of Disqualified Capital Stock issued in compliance with the terms hereof;
(f) Borrower may repurchase (or make Restricted Payments in respect thereof) common stock or common stock options (including those issued by ▇▇▇▇ Resorts or such other distributions parent entity of Borrower) from present or former officers, directors or employees (or heirs of, estates of or trusts formed by such Persons) of any Company or ▇▇▇▇ Resorts upon the death, disability, retirement or termination of employment of such officer, director or employee or pursuant to the terms of any Borrower stock option plan or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantorlike agreement; provided, however, that the aggregate amount of payments under this clause (af) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsexceed $20.0 million in any fiscal year of Borrower;
(bg) any Borrower and its Restricted Subsidiaries may distribute (i) repurchase (or make Restricted Payments in respect thereof) Equity Interests (including those issued by ▇▇▇▇ Resorts or such other parent entity of Borrower) to the extent deemed to occur upon exercise of stock options, warrants or rights pursuant in respect thereof to the extent such Equity Interests represent a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with portion of the terms exercise price of such shareholder options, warrants or rights planin respect thereof and (ii) make payments in respect of (or make Restricted Payments in respect thereof) withholding or similar taxes payable or expected to be payable by any present or former member of management, director, officer, employee, or consultant of Borrower or any of its Subsidiaries or ▇▇▇▇ Resorts or such other parent entity of Borrower or family members, spouses or former spouses, heirs of, estates of or trusts formed by such Persons in connection with clause (i);
(ch) any Borrower and its Restricted Subsidiaries may make Restricted Payments to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or, warrants or rights or upon the conversion or exchange of or into Equity Interests, or payments or distributions to dissenting stockholders pursuant to applicable law (in each case, including with respect to ▇▇▇▇ Resorts or such other parent entity of Borrower);
(i) so long as immediately before and after giving effect thereto (A) no Event of Default has occurred and is continuing and (B) the Consolidated Fixed Charge Coverage Ratio is greater than or equal to 2.00:1.00 on a Pro Forma Basis as of the most recent Calculation Date, Borrower and its Restricted Subsidiaries may make Restricted Payments in connection with or pursuant an aggregate amount not to any of its exceed (i) Employee Benefits Plans or the Initial Base Restricted Payments Amount on such date, plus (ii) the Available Amount;
(j) to the extent constituting Restricted Payments, Borrower may make payments to counterparties under Swap Contracts entered into in connection with the employmentissuance of convertible or exchangeable debt;
(k) Borrower and its Restricted Subsidiaries may make Tax Payments to the direct or indirect owners of Borrower or any of the Restricted Subsidiaries;
(l) Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed the Initial Base Junior Financing Prepayments Amount;
(m) Borrower may pay Allocable Overhead to ▇▇▇▇ Resorts in respect of each Qualifying Project of Borrower and its Restricted Subsidiaries;
(n) Borrower and its Restricted Subsidiaries may pay Management Fees and IP Licensing Fees;
(o) Borrower may on the Closing Date make Restricted Payments in order to consummate the Closing Date Refinancing;
(p) Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed the Available Equity Amount;
(q) Borrower may make ordinary course dividends or distributions to ▇▇▇▇ Resorts in an amount not to exceed $1,000.0 million in the aggregate in any fiscal year; provided that with respect to any unused amounts in any fiscal year, termination the unused amount from such fiscal year may be carried forward to the immediately subsequent two fiscal years; provided further, that during any such subsequent fiscal year, Borrower shall utilize any carried over amount before using the permitted amount for such fiscal year;
(r) so long as (i) immediately before and after giving effect thereto no Event of Default under Section 11.01(b), 11.01(c), 11.01(g), or compensation of its service providers, employees, officers or directors, 11.01(h) has occurred and is continuing and (ii) after giving effect thereto the Consolidated Total Net Leverage Ratio will not exceed 5.50:1.00 calculated on a Pro Forma Basis as of the most recent Calculation Date, Borrower and its Restricted Subsidiaries may make additional Restricted Payments;
(s) so long as (i) immediately before and after giving effect thereto no Event of Default has occurred and is continuing and (ii) after giving effect thereto Borrower is in compliance with the Financial Maintenance Covenant (regardless of whether then applicable) on a Pro Forma Basis as of the most recent Calculation Date, Borrower and its Restricted Subsidiaries may make additional Restricted Payments in an amount not to exceed the Excess Dividend Amount on such date; and
(t) Borrower and the Restricted Subsidiaries may make payments of amounts necessary to repurchase or retire Equity Securities Interests of Borrower or any Subsidiary (or of ▇▇▇▇ Resorts or any applicable parent entity) to the extent required by any Gaming Authority in order to avoid the suspension, revocation or denial of a Borrower which a shareholder is selling whether Gaming License by that Gaming Authority; provided that, in the case of any such repurchase is pursuant of Equity Interests of Borrower or any Subsidiary (or of ▇▇▇▇ Resorts or any applicable parent entity), if such efforts do not jeopardize any Gaming License, Borrower or any such Subsidiary will have previously used commercially reasonable efforts to attempt to find a repurchase right or otherwise, suitable purchaser for such Equity Interests and no suitable purchaser acceptable to the applicable Gaming Authority and Borrower was willing to purchase such Equity Interests on terms acceptable to the holder thereof within a time period acceptable to such Gaming Authority; provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) during the aggregate amount paid Financial Covenant Relief Period (x) the Borrower and its Restricted Subsidiaries will not directly or distributed indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment pursuant to foregoing Sections 10.06(a), (i), (l), (p), (q), (r) and (s) or with the proceeds of (A) any Indebtedness incurred by the Borrower or its Restricted Subsidiaries in accordance with Section 10.01 on or after the Amendment No. 1 Effective Date or (B) any period of four consecutive quarters economic or other financial aid, assistance or stimulus payments received by the Borrower and its Restricted Subsidiaries from any Governmental Authority and (excluding y) notwithstanding the foregoing clause (x), the Borrower and its Restricted Subsidiaries shall be permitted to declare, order, make or set apart any amounts covered by subsection (b) above) does not exceed 5sum or pay Restricted Payments solely with respect to up to 45% of Consolidated Tangible Net Worth dividends and distributions paid to ▇▇▇▇ Group Asia by its direct and indirect Subsidiaries during the Financial Covenant Relief Period so long as determined as (A) immediately before and after giving effect thereto no Default or Event of Default has occurred and is continuing and (B) the fiscal quarter immediately preceding Borrower is in compliance with the date requirements of determination; Section 10.13 on a Pro Forma Basis after giving effect thereto pursuant to this Section 10.06 and (ii) when combined during the Financial Covenant Increase Period, the Borrower and its Restricted Subsidiaries shall not declare, order, make or set apart any sum or pay any Restricted Payments with the amount first $200.0 million of all purchases dividends and distributions paid to ▇▇▇▇ Group Asia by its direct and indirect Subsidiaries during the Financial Covenant Increase Period (inclusive of Equity Securities made under Section 7.06(e), any amounts divided or distributed to ▇▇▇▇ Group Asia during the total of all such dividends, purchases or redemptions shall Financial Covenant Relief Period that were not exceed utilized by the sum of $100,000 in Borrower and its Restricted Subsidiaries to make Restricted Payments during the aggregate over Financial Covenant Relief Period pursuant to the life of this Agreement; provided, further, that the provisions of this foregoing clause (fi)(y), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower).
Appears in 2 contracts
Sources: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Resorts LTD)
Restricted Payments. Make The Credit Parties will not, and will not permit any of the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentsPayment, except return any capital to holders of its Equity Interests or make any distribution of its Property to its respective Equity Interest holders (all of which shall be referred to as followsa “Restricted Payment” for purposes of this Section 9.04(a)), except:
(a) (i) Borrowers the Borrower may declare and pay dividends or other distributions Restricted Payments with respect to its Equity Interests payable solely in additional shares (or the right to acquire additional shares) of capital stock of any Borrower or any Subsidiary or its Equity Interests (other than Disqualified Capital Stock);
(ii) Restricted Subsidiaries of the Borrower may declare and pay Restricted Payments ratably with respect to their Equity Interests to its direct parent that is the Borrower or a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this AgreementGuarantor;
(iii) so long as, both before and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis immediately after giving effect thereto, each of the RP/Investment Conditions is satisfied, the Borrower may declare or make, or agree to such transaction) is greater than 2.00 pay or make, directly or indirectly, any Restricted Payment, in each case in cash, and with respect to 1.00dividends and distributions, no such dividends or other distributions shall be paid by any Guarantor ratably with respect to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsits Equity Interests;
(biv) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries; and
(iv) Employee Benefits Plans or in connection the Borrower may make Restricted Payments with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities net cash proceeds of a substantially concurrent sale or issuance of Equity Interests (other than Disqualified Capital Stock) of the Borrower which (to the extent contributed to the Borrower and other than a shareholder is selling whether such repurchase is pursuant sale or issuance to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare the Borrower) or pay any ratable dividends in respect of its a substantially concurrent cash contribution to the Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that Interests (iother than Disqualified Capital Stock) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding Borrower (to the date extent contributed to the Borrower and other than a contribution by a Subsidiary of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(eBorrower), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions making of this clause (f)a Restricted Payment within 90 days after such sale, issuance or contribution shall not restrict any Subsidiary from declaring or paying dividends be deemed to any Borrower or to any wholly owned Subsidiary of Borrowerbe substantially concurrent.
Appears in 2 contracts
Sources: Credit Agreement (Northern Oil & Gas, Inc.), Credit Agreement (Northern Oil & Gas, Inc.)
Restricted Payments. Make The Company shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, make any Restricted Payments, except ; provided that the following Restricted Payments shall be permitted so long as followsno Default or Event of Default has occurred and is continuing or would occur or result from such Restricted Payments:
(a) (i) Borrowers may pay dividends or other distributions Restricted Payments payable solely in shares of capital stock of any Borrower Company’s Qualified Stock (or the equivalent thereof) or any Subsidiary or (ii) a Subsidiary may pay dividends option, warrant or other distributions right to acquire any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsQualified Stock;
(b) (i) each Subsidiary may make Restricted Payments to the Company and to any Borrower other Subsidiaries that are not Excluded Subsidiaries (and, in the case of a payment by a non-wholly owned Subsidiary, to the Company or any such other Subsidiaries that are not Excluded Subsidiaries) and to each other owner of Stock of such Subsidiary (that is not an Excluded Subsidiary) ratably according to their relative ownership interests of the relevant class of Stock or as otherwise required by the applicable Organizational Documents) and (ii) any Excluded Subsidiary may distribute rights make Restricted Payments to any other Excluded Subsidiary;
(c) repurchases of Qualified Stock deemed to occur upon the exercise of stock options or warrants if such repurchased Qualified Stock represents a portion of the exercise price of such options or warrants pursuant to a shareholder rights plan “cashless exercise” or redeem such rightssimilar feature;
(d) the Company or any Subsidiary may receive or accept the return to the Company or any Subsidiary of Stock of the Company constituting a portion of the purchase price consideration in settlement of indemnification claims in connection with a Permitted Acquisition;
(e) Restricted Payments constituting cash payments made in lieu of issuance of fractional shares made (i) to redeem, provided that such redemption is purchase, repurchase, or retire its obligations under any warrants issued by the Company or any of its Subsidiaries in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, thereof and (ii) upon the conversion of the 2028 Notes or any Permitted Refinancing of the 2028 Notes;
(f) purchases, redemptions, retirements or other acquisitions of Qualified Stock (i) held by current or former directors, officers, employee or consultants (or their transferees, estates or beneficiaries under their estates) of the Note Parties and any Subsidiaries in an aggregate amount not to repurchase Equity Securities exceed, in any fiscal year, $2,500,000, with unused amounts in any fiscal year (the “Unused A Amounts”) being carried over solely to the immediately succeeding fiscal year, and the Unused A Amounts shall be deemed to be available and used solely after the use in full of a Borrower which a shareholder is selling whether the amount available to be used for such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to immediately succeeding fiscal year without the inclusion of the Unused A Amounts;
(c)(iig) above, such Restricted Payments may in an aggregate amount not exceed to exceed, in any fiscal year $1,000,000 2,500,000, with unused amounts in any fiscal year (the aggregate at any time there are Outstanding Obligations; “Unused B Amounts”) being carried over solely to the immediately succeeding fiscal year, and Adesto Technologies Corporation Credit Agreementthe Unused B Amounts shall be deemed to be available and used solely after the use in full of the amount available to be used for such immediately succeeding fiscal year without the inclusion of the Unused B Amounts;
(dh) any Subsidiary of any Borrower may declare the Company’s purchase, redemption, retirement or pay any ratable dividends in respect other acquisition of its Equity Securities or purchase or redeem Stock with the proceeds received from a substantially concurrent issue of new shares of its Qualified Stock or from cash proceeds received solely from the settlement of Permitted Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that Derivatives; and
(i) Restricted Payments made by any Subsidiary pursuant to any Restructuring Transaction. Except as otherwise provided in Section 8(f) or Section 8(h) of each Exchange Agreement, and subject to Section 14.02(n) of this Indenture, neither (w) the aggregate amount paid or distributed in any period issuance of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as new shares of the fiscal quarter immediately preceding Company’s Qualified Stock, or the date application of determination; cash proceeds received from a Permitted Refinancing of the 2028 Notes or the settlement of Permitted Equity Derivatives, to consummate the conversion, exercise, repurchase, redemption, settlement, unwinding or early termination or cancellation of (whether in whole or in part and including by netting or set-off) the 2028 Notes or any Permitted Refinancing thereof (in each case, (A) to the extent not prohibited by the terms of the 2028 Notes, any Permitted Refinancing thereof or any Permitted Equity Derivatives, as applicable and (iiB) when combined upon the satisfaction of any condition that would permit or require any of the foregoing), (x) the issuance of or the performance of obligations under (including any payments of interest) the 2028 Notes, (y) any Permitted Refinancing thereof or (z) any Permitted Equity Derivatives, shall be prohibited by this Section 4.26, any other provision of this Agreement or any other Note Document. For the purposes of this paragraph, a Permitted Refinancing of the 2028 Notes includes any refinancing of the 2028 Notes in accordance with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerPermitted Secured Debt definition.
Appears in 2 contracts
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, except as followsthat:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a each Subsidiary may pay dividends or other distributions make Restricted Payments to any Borrower or Persons that own Equity Interests in such Subsidiary, ratably according to another Subsidiary; provided that their respective holdings of the total type of all Equity Interest in respect of which such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) Restricted Payment is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsbeing made;
(b) any the Borrower and its Subsidiaries may make non-cash Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees or other eligible service providers of the Borrower and its Subsidiaries or in connection with the Demandware Acquisition or a Permitted Acquisition involving the issuance of Equity Interests of the Borrower to its employees or other eligible service providers outside of a stock option or benefit plan that are subject to vesting and forfeiture conditions;
(c) the Borrower may distribute rights pursuant to a shareholder stockholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder stockholder rights plan;
(cd) any each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person;
(e) the Borrower may make Restricted Payments in connection purchase, redeem or otherwise acquire Equity Interests issued by it with or pursuant to any the proceeds received from the substantially concurrent issuance of its Equity Interests (iother than Disqualified Stock);
(f) Employee Benefits Plans the Borrower may repurchase or pay cash in lieu of fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversions of convertible securities (including Convertible Debt Securities);
(g) the Borrower and its Subsidiaries may pay withholding taxes in connection with the employment, termination or compensation retention of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is Interests pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreementequity-based compensation plans;
(dh) the Borrower or any Subsidiary may receive or accept the return to the Borrower or any Subsidiary of Equity Interests of the Borrower or any Borrower may declare or pay any ratable dividends Subsidiary constituting a portion of the purchase price consideration in respect settlement of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that indemnification claims;
(i) the Borrower or any Subsidiary may pay cash in lieu of fractional shares in connection with the conversion of any Equity Interests or make cash settlement payments upon the exercise of warrants to purchase its Equity Interests or “net share settle” warrants;
(j) the Borrower may make payments or distributions to dissenting stockholders as required by applicable Law;
(k) the Borrower may enter into, exercise its rights and perform its obligations under Permitted Call Spread Swap Agreements;
(l) the Borrower may make distributions or dividends consisting of products and/or services or other assets of the Borrower, either directly or through distributions or dividends consisting of all or a portion of the Equity Interests of Subsidiaries (other than Material Subsidiaries), that the Borrower has reasonably determined, in good faith, are not material to the operations or financial condition of the Borrower and its Subsidiaries taken as a whole, the fair market value (as reasonably determined by the Borrower) of all such distributions and dividends under this clause (l) in any fiscal year of the Borrower not to exceed $75,000,000 in the aggregate taken together with (but without duplication of) all Dispositions made in reliance on clause (l) of the definition of “Permitted Transfers” in such fiscal year;
(m) so long as no Default exists immediately prior and after giving effect thereto, the Borrower may make other Restricted Payments in an aggregate amount paid or distributed during any fiscal year of the Borrower not to exceed $65,000,000; and
(n) the Borrower and its Subsidiaries may make any other Restricted Payment so long as, prior to making such Restricted Payment and after giving effect thereto (and to any Indebtedness incurred in any period of four consecutive quarters connection therewith), (excluding any amounts covered by subsection i) no Default has occurred and is continuing, (bii) above) does not exceed 5% of the Consolidated Tangible Net Worth as determined Leverage Ratio, calculated on a Pro Forma Basis as of the most recent fiscal quarter immediately preceding end for which the date of determination; Borrower was required to deliver financial statements pursuant to Section 8.01(a) or (b), is less than or equal to 3.00 to 1.00, and (iiiii) when combined the Loan Parties are otherwise in compliance with the amount financial covenants set forth in Section 9.10, calculated on a Pro Forma Basis as of all purchases of Equity Securities made under the most recent fiscal quarter end for which the Borrower was required to deliver financial statements pursuant to Section 7.06(e8.01(a) or (b), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Salesforce Com Inc), Credit Agreement (Salesforce Com Inc)
Restricted Payments. Make The Borrower will not, nor will it permit any Subsidiary to, make any Restricted Payments, Payment (other than dividends payable in its own capital stock) except as follows:that,
(a) 6.10.1 Any Subsidiary may declare and pay dividends or make distributions (i) Borrowers may pay dividends or other distributions payable solely in its capital stock to the direct or indirect holders of its capital stock or (ii) payable in dividends and distributions to the Borrower or to a Subsidiary that is a Guarantor (and if such Subsidiary has shareholders other than the Borrower or a Subsidiary that is a Guarantor, to its shareholders on a pro rata basis).
6.10.2 The Borrower may make Restricted Payments pursuant to stock incentive or award plans approved by its stockholders.
6.10.3 The Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock (or warrants, options, or other rights to acquire additional shares of its capital stock).
6.10.4 The Borrower and its Subsidiaries may make repurchases of capital stock deemed to occur upon exercise of stock options if such capital stock represents a portion of the exercise price of such options, and repurchases of capital stock of Subsidiaries consisting of directors’ qualifying shares or repurchases of shares issued to third parties to the extent necessary to satisfy any Borrower licensing requirements under applicable law with respect to the Borrower’s or any Subsidiary or (ii) a Subsidiary of its Subsidiaries’ businesses.
6.10.5 The Borrower may pay dividends make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other distributions to any Borrower securities convertible into or to another Subsidiary; provided that exchangeable for capital stock of the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a GuarantorBorrower; provided, however, that this clause (a) any such cash payment shall not restrict dividends be for the purpose of evading the limitations of this Section 6.10.
6.10.6 [Reserved.]
6.10.7 The Borrower and its Subsidiaries may make any purchase, repurchase, redemption, retirement or other distributions acquisition for value of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any of its Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights or permitted transferees of such employees, former employees, directors or former directors), pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors under which such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with individuals purchase or pursuant sell or are granted the option to any purchase or sell, shares of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, capital stock; provided, however, that with respect to (c)(ii) abovethe aggregate amount of such purchases, such Restricted Payments may repurchases, redemptions, retirements and other acquisitions for value will not exceed $1,000,000 10,000,000 in the aggregate.
6.10.8 The Borrower and its Subsidiaries may make any Restricted Payment to the extent not otherwise permitted under this Section 6.10 so long as at the time of such Restricted Payment the aggregate amount of such additional Restricted Payment together with all other outstanding Restricted Payments pursuant to this Section 6.10.8 does not exceed $5,000,000.
6.10.9 Any Restricted Payment may be made by or to a Rabbi Trust or Rabbi Trust Subsidiary.
6.10.10 So long as no Event of Default or Unmatured Event of Default exists at any the time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
thereof or would result therefrom (d) any Subsidiary of any after giving pro forma effect thereto), the Borrower may declare or and pay cash dividends on its capital stock, repurchase and otherwise acquire its capital stock and make any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerother Restricted Payment.
Appears in 2 contracts
Sources: Credit Agreement (Chemed Corp), Credit Agreement (Chemed Corp)
Restricted Payments. Make Declare or make any Restricted Payments, except as followsPayment or incur any obligation (contingent or otherwise) to do so except:
(a) a Subsidiary of a Loan Party may declare and pay dividends ratably with respect to such Subsidiary’s Equity Interests;
(ib) Borrowers and other Loan Parties may make Restricted Payments, not exceeding $2,000,000 during any Fiscal Year pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Borrowers;
(c) Borrowers may make any “net down payments” involving the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrowers held by any employee in connection with vesting of equity awards, in order to satisfy any tax withholding obligations;
(d) Borrowers may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrowers held by any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Loan Party or make Restricted Payments in the form of distributions to allow the Borrowers to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of such Borrowers in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests of the Borrowers held by such Persons; provided that the aggregate amount of Restricted Payments pursuant to this clause (d) shall not exceed $1,000,000;
(e) So long as there exists no Default or Event of Default, Borrowers may pay dividends or other make distributions payable solely to its shareholders or members, as applicable, in shares an aggregate amount not greater than the amount necessary for such shareholders or members to pay their actual state and United States federal income tax liabilities in respect of capital stock of income earned by Loan Parties after deducting any Borrower or any Subsidiary or unused prior losses;
(iif) a Subsidiary Borrowers may pay dividends or other distributions management fees pursuant to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Management Services Agreement as long as no Default or Event of Default shall exists or would result therefrom and Borrowers have occurred and be continuing or (2) cash, Cash Equivalents and/or unused availability under the Leverage Ratio (determined on a pro forma basis Revolving Credit Facility of at least $20,000,000 in the aggregate after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorspayment;
(bg) any Borrower Borrowers may distribute rights pursuant to a shareholder rights plan declare and make dividend payments or redeem such rights, provided that such redemption is other Restricted Payments payable solely in accordance with the terms form of common Equity Interests of such shareholder rights plan;Person; and
(ch) any Borrower Borrowers may make any other Restricted Payments in connection with or pursuant to any of its Payments, provided, that (i) Employee Benefits Plans at the time when any such Restricted Payment is to be made, no Default or in connection with the employment, termination Event of Default exists or compensation of its service providers, employees, officers or directors, would result therefrom and (ii) after giving effect to repurchase Equity Securities the making of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 Payment, Borrowers would be in compliance with the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary requirements of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunderSection 9.16, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as on a pro forma basis, determined as of the fiscal quarter immediately last day of the last Fiscal Quarter of Borrowers for which Borrowers have provided financial statements and the corresponding Compliance Certificate to the Administrative Agent and Lenders as if such Restricted Payment had been paid during such Fiscal Quarter, and a Responsible Officer of Borrowers shall have certified to the Administrative Agent and Lenders as to compliance with the preceding the date of determination; and clause (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all in a certificate attaching calculations; provided further that such dividends, purchases or redemptions certificate shall not exceed be required with respect to Restricted Payments made pursuant to a share repurchase program approved by the sum board of $100,000 in directors (or other governing body) of the aggregate over the life of this Agreement; provided, further, that the provisions of this clause Borrowers (f), shall not restrict any Subsidiary from declaring or paying dividends an extension/increase to any Borrower or to any wholly owned Subsidiary of Borrowerexisting program).
Appears in 2 contracts
Sources: Fifth Amendment to Third Amended and Restated Credit Agreement (Construction Partners, Inc.), Credit Agreement (Construction Partners, Inc.)
Restricted Payments. Make Each Loan Party will not, and will not permit any of its Subsidiaries to, make any Restricted PaymentsPayment; provided, except that so long as follows:it is permitted by law,
(a) Borrowers may make distributions to Parent, and Parent may use such amounts to make distributions to former employees, officers, or directors of Parent or any of its Subsidiaries (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Equity Interests of Parent held by such Persons, so long as no Default or Event of Default shall have occurred or be continuing or would result therefrom; provided, that the aggregate amount of such redemptions made by Parent during the term of this Agreement plus the amount of Indebtedness outstanding under clause (j) of the definition of Permitted Indebtedness, does not exceed $250,000 in the aggregate,
(b) Borrowers may make distributions to Parent solely in the form of forgiveness of Indebtedness (so long as Parent contemporaneously forgives Indebtedness in the same amount of employees or officers of Borrower (or an entity consisting solely of employees or officers of Borrowers) owing to Parent on account of repurchases of the Equity Interests of Parent held by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire (i) Borrowers may pay dividends or other distributions payable solely in shares Equity Interests of capital stock of any Borrower or any Subsidiary Parent or (ii) a Subsidiary Equity Interests of an entity that acquired Equity Interests of Parent),
(c) Parent may pay dividends or other distributions solely in the form of Equity Interests of any class of the Parent’s common equity,
(d) Restricted Payments may be made by any Subsidiary to any Borrower Borrower, the Parent, or to another Subsidiary; Subsidiary (provided, that, if the Subsidiary making such Restricted Payment is a Loan Party, the Subsidiary receiving such Restricted Payment is also a Loan Party), on at least a pro rata basis with any other shareholders if such Subsidiary is not wholly owned by the Parent and other wholly owned Subsidiaries of the Parent,
(e) Parent may declare and pay Restricted Payments in the form of redemptions, repurchases, retirement, defeasance, or other acquisition of or in respect of the common equity of the Parent in connection with the payment or exercise of, or satisfaction of tax withholding obligations of participants on account of or relating to, awards held by or granted from time to time to participants in equity compensation plans of the Parent not to exceed $2,000,000 in the aggregate in any period of 12 consecutive fiscal months of the Parent, provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have occurred and be continuing at the time such redemption, repurchase, retirement, defeasance, or other acquisition is declared or made, and
(2f) Parent and its Subsidiaries may pay other Restricted Payments, provided, that, (i) as of the Leverage Ratio (determined on a pro forma basis date of payment of any such Restricted Payment, and after giving effect to such transaction) is greater than 2.00 to 1.00thereto, no such dividends or other distributions each of the Restricted Payment Conditions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; providedhave been satisfied, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is Restricted Payments made pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), ) during the first year after the date of this Agreement shall not restrict exceed (A) $2,500,000 in the aggregate and (B) $625,000 during any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary quarter of Borrowersuch year.
Appears in 2 contracts
Sources: Credit Agreement (Tessco Technologies Inc), Credit Agreement (Tessco Technologies Inc)
Restricted Payments. Make 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, make any other Restricted Payments, except as follows:
payable solely in additional shares of its common stock, (ab) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) so long as, at the time any such Restricted Payment is made and immediately after giving effect (including pro forma effect) thereto (and to the incurrence of any Indebtedness in connection therewith) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Default or Event of Default shall have occurred and be is continuing, (ii) the Total Net Leverage Ratio is not greater than 2.50 to 1.00 and (iii) the Borrower is in compliance with the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio, the Borrower and its Subsidiaries may make other Restricted Payments, (e) so long as no Default or Event of Default has occurred and is continuing or (2) the Leverage Ratio (determined on a pro forma basis would arise after giving effect (including pro forma effect) thereto the Borrower and any Subsidiaries may repurchase Equity Interests from any current or former officer, director, employee or consultant to comply with Tax withholding obligations relating to Taxes payable by such transactionPerson upon the grant or award of such Equity Interests (or upon vesting thereof), (f) so long as no Default or Event of Default has occurred and is greater than 2.00 to 1.00continuing or would arise after giving effect (including pro forma effect) thereto, no such dividends the Borrower and any Subsidiaries may purchase Equity Interests from present or other distributions shall be paid by any Guarantor to former officers, directors or employees of the Borrower or any Subsidiary which is not also a Guarantor; providedupon the death, howeverdisability, that this clause (a) shall not restrict dividends retirement or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan termination of employment or redeem such rights, provided that such redemption is in accordance with the terms service of such shareholder rights plan;
officer, director or employee, in an aggregate amount not exceeding $5,000,000 in any fiscal year of the Borrower and (cg) so long as no Default or Event of Default has occurred and is continuing or would arise after giving effect (including pro forma effect) thereto, the Borrower and any Borrower Subsidiaries may make other Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the an aggregate amount paid or distributed not exceeding $15,000,000 in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as fiscal year of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Eagle Pharmaceuticals, Inc.), Credit Agreement (Eagle Pharmaceuticals, Inc.)
Restricted Payments. Make Declare or make any Restricted PaymentsPayment, except as followsthat:
(a) each Subsidiary may make Restricted Payments to the Borrowers, the Guarantors or any Subsidiary of the Borrowers and any other Person that owns an Equity Interest in such Subsidiary, ratably, in the case of such other Persons that are not Borrowers or Subsidiaries, according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; and each Borrower may make Restricted Payments to any other Borrower or any Subsidiary that owns an Equity Interest in such Borrower;
(b) the Borrowers and each Subsidiary may declare and make dividend payments or other distributions to the extent paid or payable solely in the common stock or other common Equity Interests of such Person; provided that the limitations set forth in this clause (b) shall not prohibit the making of cash payments in connection with any dividend or other distribution paid or payable in common stock or other common Equity Interests of such Person so long as such cash payment is not otherwise prohibited by the terms of the Loan Documents;
(c) the Borrowers and each Subsidiary may purchase, redeem or otherwise acquire any Equity Interests of the Borrowers or any Subsidiary; provided, that, at the time or as a result thereof there shall exist no Default or Event of Default. Notwithstanding the foregoing, in no event may the Commitment be used to fund the purchase, redemption or other acquisition of REIT common stock, except to the limited extent that if Net Disposition Proceeds which otherwise would be permitted to be used to purchase, redeem or otherwise acquire such common stock and are designated to be so used but for an interim period are instead used to pay down the Revolving Loans, then an equal amount of the Commitment may be borrowed (in accordance with this Agreement) to purchase, redeem or otherwise acquire such common stock for a period ending 60 days after such repayment; and
(d) the Borrowers and each Subsidiary may declare or make dividends and distributions (excluding those dividends and distributions otherwise permitted under this Section 7.06) in an aggregate amount that do not exceed the greater of (i) during any four consecutive fiscal quarter period for which financials are available, 95% of Funds From Operations for such four consecutive fiscal quarter period, and (ii) with respect to any tax year of the REIT, such amount as may be necessary for the REIT to maintain REIT Status for such tax year; provided that, notwithstanding the foregoing, the Borrowers may pay dividends also make Restricted Payments (so long as no Default exists or other would arise as a result of such Restricted Payment) in an amount equal to the amount that would need to be distributed to all of the Borrowers’ partners or shareholders in order for the REIT to make the minimum distributions payable solely required to be distributed to its shareholders under the Code (A) to avoid the payment of taxes imposed under Code Section 857(b)(1) and 4981 of the Code, and (B) to avoid the a payment of taxes imposed under Section 857(b)(3) of the Code. Nothing in shares Sections 7.06(a), (b) (c) or (d) shall prohibit (A) any Borrower or any Subsidiary of capital stock any Borrower from making tender offers for or otherwise acquiring for value any Equity Interests, now or hereafter outstanding, of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders which were not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered issued by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any acquiring Borrower or Subsidiary or (B) any Restricted Payment by any Person pursuant to such Person’s Organization Documents, including any wholly owned Subsidiary Restricted Payment funded with proceeds from Dispositions of Borrowerassets.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Aimco Properties L.P.), Senior Secured Credit Agreement (Aimco Properties Lp)
Restricted Payments. Make Each of the Parent and the Company covenants that it shall not, and shall not permit any Restricted PaymentsSubsidiary to, except as followsmake any distribution to any holders of its Capital Securities, purchase or redeem any of its Capital Securities, pay any management fees or similar fees or expenses to any of its equityholders or any Affiliate thereof, make any redemption, prepayment, defeasance, repurchase or any other payment in respect of any Intercompany Subordinated Debt or set aside funds for any of the foregoing. Notwithstanding the foregoing:
(a) (i) Borrowers the Company may pay dividends reimburse Parent for out-of-pocket costs and expenses incurred by Parent on behalf of or other distributions payable solely for the benefit of the Company, and for fees charged by Parent to the Company, in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions an aggregate amount not to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by 4,000,000 during any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsfiscal year;
(b) any Borrower subject to the Intercompany Subordination Agreement, the Company may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is make payments in accordance with kind of scheduled interest on the terms Intercompany Subordinated Note at the non-default rate of such shareholder rights planinterest set forth in the Intercompany Subordinated Note;
(c) any Borrower Subsidiary may pay dividends or make other distributions to the Company or to a Domestic Subsidiary that is a Wholly-Owned Subsidiary and a Guarantor;
(d) so long as the Company files a consolidated income tax return with Parent, the Company may make Restricted Payments in connection distributions to Parent to permit Parent to pay federal and state income taxes then due and owing; provided that the amount of such distribution shall not be greater, nor the receipt by the Company of tax benefits less, than they would have been had the Company not filed a consolidated return with or pursuant Parent;
(e) the Company may make, and the Parent may distribute to any of its shareholders, the Permitted Parent Dividends and other cash distributions to Parent from time to time so long as (i) Employee Benefits Plans no Default or Event of Default has occurred and is continuing on the date of any such distribution or would result therefrom, (ii) after giving effect to any such distribution (and any Debt incurred to fund such distribution), the Parent is in compliance on a pro forma basis with the financial covenants set forth in paragraph 6A as of the last day of the most recent fiscal quarter for which an Officer’s Certificate of the Parent has been delivered in accordance with paragraph 5A, and (iii) after giving effect to any such distribution, the aggregate amount of all such distributions made following the date of closing shall not exceed Cumulative Available Excess Cash Flow as of the date of such distribution; and
(f) the Parent may satisfy its obligations in connection with the employment, termination or compensation of its service providers, employees, officers or directors, Warrants and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Underwriting Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 2 contracts
Sources: Note Purchase Agreement (Kapstone Paper & Packaging Corp), Note Purchase Agreement (Kapstone Paper & Packaging Corp)
Restricted Payments. Make Declare or make, or permit any Subsidiary (other than any Subsidiary Outside Company) to declare or make, any Restricted PaymentsPayment, or incur, or permit any Subsidiary (other than any Subsidiary Outside Company) to incur, any obligation (contingent or otherwise) to do so, except as followsthat:
(a) each Subsidiary may declare and make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) the Borrower may make distributions to the Trust to permit the Trust to satisfy expenses of the Trust that relate to the Borrower and its Subsidiaries;
(c) to the extent the Borrower remains a pass-through entity, the Borrower may make distributions to the Trust to permit the Trust to pay federal and state income taxes then due and owing by the Trust that are attributable to the Trust’s ownership of Equity Interests in the Borrower and the operations of the Borrower and its Subsidiaries, so long as the amount of such distributions for the payment of taxes shall not be greater than the amount such taxes would have been had the Borrower not filed consolidated income tax returns with the Trust;
(d) the Borrower and the Portfolio Companies may pay Management Fees to the Manager, and reimburse the Manager for its reasonable expenses incurred in connection with its management of the Borrower, pursuant to and in accordance with the terms of the Management Fee Agreement and the other Management Fee Documents, each as in effect on the date hereof (provided, that (i) Borrowers may pay dividends any amounts paid by the Borrower under the Management Fee Agreement shall be net of amounts paid by the Portfolio Companies to the Manager or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or its Affiliates pursuant to the Management Fee Documents to which the Portfolio Companies are party and (ii) a Subsidiary the making and receipt of payments under the Management Fee Documents shall be subject to the provisions of the Management Fee Subordination Agreement);
(e) Subsidiaries may pay dividends Integration Services Fees, in each case to the extent that (i) such fees are reasonable and customary based on the applicable acquisition or other distributions sale and (ii) such fees have been approved by the board of directors (or equivalent governing body) of the applicable Portfolio Company or Outside Company and by the compensation committee of the Borrower;
(f) the Borrower may make Allocation Member Distributions;
(g) the Borrower may make Restricted Payments if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (i) no Event of Default exists or would result therefrom (and, assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of the then most recently ended twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder, the Borrower would be in compliance with Section 7.11(a) on a Pro Forma Basis), and (ii) either (A) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to any Borrower a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000, or to another Subsidiary; provided that (B) the total of all such dividends or other distributions to Subsidiaries Consolidated Fixed Charge Coverage Ratio for the twelve-month period for which are not Guarantors shall not exceed $300,000 over the life of financial statements have been most recently delivered in accordance with this Agreement, calculated on a Pro Forma Basis giving effect to any such Restricted Payment by the Borrower and provided further that if all other such Restricted Payments by the Borrower during such period as charges in the denominator of the Consolidated Fixed Charge Coverage Ratio, is greater than 1.00 to 1.00;
(1h) a Default each Portfolio Company may purchase or redeem shares of its preferred stock from any one or more shareholders:
(i) with Intercompany Debt permitted hereunder if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (A) no Event of Default shall have occurred and be continuing exists or would result therefrom, (2B) the Consolidated Total Leverage Ratio as of the last day of the most recently ended twelve-month period for which financial statements have been delivered hereunder (determined calculated on a Pro Forma Basis assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of such period) is less than 2.00 to 1.00, and (C) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000;
(ii) [reserved]; and
(iii) with proceeds (net of reasonable direct costs incurred in connection therewith, including legal, accounting and investment banking fees, professional fees and expenses, and taxes paid or reasonably estimated by the Borrower to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements)) of a sale or issuance by the Trust of common Equity Interests in the Trust, which proceeds are contributed by the Trust to the Borrower and further contributed by the Borrower to such Portfolio Company and actually used by such Portfolio Company to purchase or redeem shares of its preferred stock substantially concurrently with such sale or issuance and contributions;
(i) each Portfolio Company may purchase or redeem shares of its common and/or preferred Equity Interests from any one or more minority shareholders in unlimited amounts, provided that no such purchase or redemption shall be made by a Portfolio Company unless (A) such Portfolio Company is in compliance with the financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such transactionproposed purchase or redemption, (B) is greater than 2.00 no Event of Default exists or would result therefrom and (C) after giving effect to 1.00such to such proposed purchase or redemption and the incurrence of any Indebtedness in connection therewith, no such dividends or other distributions the Borrower shall be paid by any Guarantor in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is the Administrative Agent in accordance with the terms provisions of such shareholder rights planthis Agreement;
(cj) any Borrower to the extent due and payable and permitted under the applicable subordination provisions thereof, the Portfolio Companies may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends regularly scheduled payments in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunderPermitted Earn Out Obligations, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does revolver borrowing availability under the Intercompany Debt Documents between the Borrower and the applicable Portfolio Company after giving effect to such payment shall be not exceed 5% of Consolidated Tangible Net Worth as determined as less than the product of the fiscal quarter immediately preceding Portfolio Company EBITDA of such Portfolio Company for the date twelve month period ending on the last day of determination; and the month for which a Compliance Certificate has most recently been delivered to the Administrative Agent in accordance with this Agreement times 0.25, (ii) when combined such Portfolio Company is in compliance with the amount financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such payment, (iii) no Event of all purchases of Equity Securities made under Section 7.06(e)Default exists or would result therefrom and (iv) after giving effect to such to such payment, the total Borrower shall be in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the aggregate over the life provisions of this Agreement; provided, further, that and
(k) the provisions Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowersuch Person.
Appears in 2 contracts
Sources: Credit Agreement (5.11 Abr Corp.), Credit Agreement (Compass Group Diversified Holdings LLC)
Restricted Payments. Make Declare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of Holdings, the Borrower or any of the Restricted Subsidiaries, 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 Holdings, the Borrower or any of the Restricted Subsidiaries (collectively, “Restricted Payments”), except as followsthat:
(a) (i) Borrowers any Restricted Subsidiary may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or make Restricted Payments to the Borrower, any Subsidiary Guarantor or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another the equity holders of such Restricted Subsidiary; provided that (i) such Restricted Payments shall be made ratably based on the total relevant ownership percentages of all the Capital Stock, (ii) the aggregate amount of such dividends or other distributions Restricted Payments made to Subsidiaries which equity holders that are not Guarantors Loan Parties or not permitted under Section 7.6(b) shall not exceed $300,000 over 20,000,000 plus the life of this AgreementAvailable Amount, and provided further that if (1iii) a no Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis before and after giving effect to such transactionRestricted Payments and (iv) is greater than 2.00 after giving effect to 1.00the consummation of such Restricted Payment, no such dividends or other distributions the Borrower shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;in pro forma compliance with the covenants in Section 7.1.
(b) any (i) Non-Guarantor Subsidiaries of the Borrower that are Domestic Subsidiaries may distribute rights pursuant make Restricted Payments to a shareholder rights plan or redeem such rights, provided other Non-Guarantor Subsidiaries that such redemption is in accordance with are Domestic Subsidiaries and (ii) Non-Guarantor Subsidiaries of the terms of such shareholder rights planBorrower that are Foreign Subsidiaries may make Restricted Payments to other Non-Guarantor Subsidiaries;
(c) any the Borrower may make Restricted Payments in connection with or pursuant to any of its Holdings to permit Holdings to pay (i) Employee Benefits Plans any taxes (at the then applicable rate) which are due and payable by Holdings (or any of the direct or indirect equity holders of Holdings) and the Borrower and their applicable Subsidiaries to the extent such taxes are attributable to the Borrower or the Restricted Subsidiaries, (ii) ordinary course corporate operating expenses and customary corporate indemnities owing to directors of Holdings, the Borrower or the Restricted Subsidiaries or their respective Affiliates in connection with the employmentordinary course of business in an aggregate amount not to exceed $500,000 for any fiscal year, termination and (iii) fees and expenses to the extent permitted under clause (i) of the second sentence of Section 7.9;
(d) so long as (i) no Default or compensation Event of its service providers, employees, officers or directors, Default shall have occurred and be continuing immediately before and after giving effect to such Restricted Payments and (ii) after giving effect to repurchase Equity Securities the consummation of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 Payment, the Borrower shall be in pro forma compliance with the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
covenants in Section 7.1 (d) any Subsidiary calculated as of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as last day of the fiscal quarter immediately preceding the date fiscal quarter in which such Restricted Payment is consummated for which financial statements have been delivered pursuant to Section 6.1, giving pro forma effect to such Restricted Payment), the Borrower may (x) make Restricted Payments to Holdings to permit Holdings to purchase its Capital Stock from present or former officers, consultants, directors or employees (and their spouses, former spouses, heirs, estates and assigns) of determination; Holdings, the Borrower or any of the Restricted Subsidiaries upon the death, disability, engaging in competitive activity or termination of employment of such officer, director, consultant or employee or pursuant to any equity subscription, shareholder, employment or other agreement, (y) purchase Capital Stock of the Borrower from present or former officers, consultants, directors or employees (and their spouses, former spouses, heirs, estates and assigns) of Holdings, the Borrower or any of the Restricted Subsidiaries upon the death, disability, engaging in competitive activity or termination of employment of such officer, director, consultant or employee to the extent permitted by clause (ii) when combined with of Section 7.16(c) and (z) make any other Restricted Payments; provided that the aggregate amount of all purchases of Equity Securities made Restricted Payments under Section 7.06(e), the total of all such dividends, purchases or redemptions this clause (d) shall not exceed the sum of (A) $100,000 in 25,000,000 plus (B) with respect to payments under clauses (x) or (y) above, the aggregate over the proceeds of any key-man life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends insurance with respect to any such employee paid to the Borrower or any of its Restricted Subsidiaries plus (C) provided that immediately before and immediately after giving effect to any wholly owned Subsidiary such Restricted Payment, the Senior Secured Net Leverage Ratio shall be less than 4.75:1.00, the Available Amount; and
(e) the Borrower may make Restricted Payments to Holdings to pay cash in lieu of Borrowerfractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition, in each case, otherwise permitted hereunder.
Appears in 2 contracts
Sources: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except that so long as followsno Event of Default has occurred and is continuing:
(a) each Subsidiary may declare and make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ib) Borrowers the Parent Borrower and each Subsidiary may pay dividends declare and make dividend payments or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms common Equity Interests of such shareholder rights planPerson;
(c) any the Parent Borrower may declare and make Restricted Payments dividend payments and may issue and make redemptions of stock or other ownership interests in connection accordance with stock option, employee incentive or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, similar plans for employees, directors or officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementParent Borrower;
(d) the Parent Borrower may make (A) any Subsidiary payment of premium to a counterparty under a Permitted Bond Hedge Transaction, (B) any payment in connection with a Permitted Warrant Transaction (x) by delivery of shares of the Parent Borrower’s common stock upon net share settlement thereof or (y) by set-off and/or payment of an early termination payment or similar payment thereunder in the Parent Borrower’s common stock upon any early termination thereof;
(e) the Parent Borrower may issue shares of its common stock to satisfy obligations in respect of Permitted Convertible Notes;
(f) the Parent Borrower may receive shares of its common stock on account of net share settlements or terminations of any Permitted Bond Hedge Transactions or Permitted Warrant Transactions entered into in connection with Permitted Convertible Notes;
(g) the Parent Borrower may declare and make other Restricted Payments, including in connection with Permitted Acquisitions, provided that each of the Standard Conditions shall be satisfied; and
(h) the Parent Borrower and each Subsidiary may purchase, redeem or pay any ratable dividends in respect otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of its Equity Securities or purchase or redeem new shares of its common stock or other common Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerInterests.
Appears in 2 contracts
Sources: Credit Agreement (Forward Air Corp), Credit Agreement (Forward Air Corp)
Restricted Payments. Make Parent will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make (unless such agreement is contingent upon such Restricted Payment not being prohibited by this Agreement), directly or indirectly, any Restricted PaymentsPayment, except as followsexcept:
(a) Parent may declare and pay dividends or make other Restricted Payments with respect to its Equity Interests payable solely in additional Equity Interests of Parent (other than Disqualified Equity Interests);
(b) Parent and any Restricted Subsidiaries may repurchase (i) Borrowers Equity Interests upon the exercise of Equity Equivalents if such Equity Interests represent a portion of the exercise price of such Equity Equivalents and (ii) Equity Interests from any current or former officer, director, employee or consultant to comply with Tax withholding obligations relating to Taxes payable by such person upon the grant or award of such Equity Interests (or upon vesting thereof);
(c) Parent and any Restricted Subsidiaries may make cash payments in lieu of the issuance of fractional shares in connection with the exercise or conversion of Equity Equivalents;
(d) Any Restricted Subsidiary may declare and pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or make other distributions to any Borrower or to another Subsidiarythe holders of its Equity Interests; provided that in the total case of all a dividend or other distribution by a non-Wholly Owned Restricted Subsidiary, such dividends or distributions shall be made ratably with respect to their Equity Interests;
(e) Parent and any Restricted Subsidiaries may make Restricted Payments pursuant to and in accordance with stock incentive plans or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life employee benefit plans for directors, officers or employees of this Agreement, Parent and provided further that if its Subsidiaries;
(1f) a so long as no Default or Event of Default shall have has occurred and be is continuing or would arise after giving effect (2including pro forma effect) thereto, Parent and any Restricted Subsidiaries may purchase Equity Interests from present or former officers, directors or employees of Parent or any Subsidiary upon the death, disability, retirement or termination of employment or service of such officer, director or employee, in an aggregate amount not exceeding $10,000,000 in any fiscal year of Parent;
(g) Parent or any Restricted Subsidiary may purchase any call option (or similar instrument) to purchase Equity Interests (other than Disqualified Capital Stock) of Parent permitted under Section 7.04(m) and exercise any call or similar rights thereunder; provided that after giving effect to the issuance of the convertible or exchangeable debt securities referred to in Section 7.04(m), (x) the Total Leverage Ratio shall be less than or equal to 3.0 to 1.0 and (determined y) the Secured Leverage Ratio shall be less than or equal to 2.25 to 1.0, in each case as of the end of the most recently completed Test Period and on a pro forma basis in accordance with Section 1.03(c);
(h) the payment of any dividend or distribution, or the consummation of any irrevocable redemption, within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at such date of declaration or redemption notice such dividend, distribution or redemption, as the case may be, would have complied with this Section 7.06;
(i) so long as no Default or Event of Default has occurred and is continuing or would arise after giving effect to such transaction(including pro form effect) is greater than 2.00 to 1.00thereto, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Parent and its Restricted Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant Payments; provided however to the extent, after giving effect (including pro forma effect) to any such Restricted Payments, the Total Leverage Ratio is in excess of its (i) Employee Benefits Plans or in connection with 2:00:1.00, the employment, termination or compensation aggregate amount of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of (i) $100,000 100,000,000 and (ii) if the Available Amount Conditions have been met, the Available Amount;
(j) other Restricted Payments of Parent and its Restricted Subsidiaries in an aggregate amount not to exceed $30,000,000 during the aggregate over the life term of this Agreement; provided, further, that the provisions and
(k) Parent and its Restricted Subsidiaries may purchase theany remaining outstanding Equity Interests (and any Equity Equivalents) of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends acquired in an Investment made in compliance with Section 7.04 that iswas structured as a tender offer followed by a back-end mergerpursuant to any Borrower or to any wholly owned Subsidiary which not less than a majority of Borrowersuch Subsidiary’s Equity Interests was acquired.
Appears in 2 contracts
Sources: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Restricted Payments. Make The Parent Guarantor will not, and will not permit Lessee or any other Subsidiary to, make, directly or indirectly, any Restricted PaymentsPayment, except as follows:
(a) (i) Borrowers the Parent Guarantor may pay dividends or make other distributions Restricted Payments with respect to its Equity Interests payable solely in shares of capital stock of any Borrower or any Subsidiary or additional Equity Interests, (ii) the Parent Guarantor may purchase, redeem or otherwise acquire Equity Interests upon the exercise of stock options or warrants if such Equity Interests represent a Subsidiary portion of the exercise price of such options or warrants or with the proceeds received from the substantially concurrent issue of new Equity Interests, (iii) the Parent Guarantor may pay make cash payments (A) on securities convertible into or exchangeable for Equity Interests in the Parent Guarantor in accordance with their terms or (B) in lieu of the issuance of fractional Equity Interests in connection with any dividend, split or combination thereof or the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Parent Guarantor, (iv) Subsidiaries may (A) make dividends or other distributions to their respective equityholders with respect to their Equity Interests (which distributions shall be (x) made on at least a ratable basis to any Borrower such equityholders that are Guarantors and (y) in the case of a Subsidiary that is not a wholly-owned Subsidiary, made on at least a ratable basis to any such equityholders that are the Parent Guarantor or a Subsidiary), (B) make other Restricted Payments to another Subsidiary; provided Parent Guarantor, the Lessee or any Subsidiary Guarantor (either directly or indirectly through one or more Subsidiaries that are not Subsidiary Guarantors or the Lessee), (C) other than with respect to any such distributions by a Subsidiary Guarantor, make other Restricted Payments to a Bank Credit Agreement Specified Loan Party (either directly or indirectly through one or more Subsidiaries that are not Bank Credit Agreement Specified Loan Parties, Subsidiary Guarantors or the Lessee) and (D) make any Restricted Payments that the total of all such dividends Parent Guarantor would have otherwise been permitted to make pursuant to this Section 9(d), (v) the Parent Guarantor may make Restricted Payments (A) for the repurchase, retirement or other distributions acquisition or retirement for value of Equity Interests of the Parent Guarantor from any future, present or former employee, officer, director, manager or consultant of the Parent Guarantor or any Subsidiary upon the death, disability, retirement or termination of employment of any such Person or (B) pursuant to and in accordance with any agreement (including any employment agreement), stock option or stock ownership plans, incentive plans or other benefit plans, in each case for future, present or former directors, officers, managers, employees or consultants of the Parent Guarantor and its Subsidiaries which are not Guarantors shall not exceed $300,000 over (including, without limitation, in respect of tax withholding or other similar tax obligation related to the life of this Agreementforegoing), (vi) the Parent Guarantor and provided further that if (1) a Default or its Subsidiaries may make any other Restricted Payment so long as no Event of Default shall have has occurred and be is continuing at the time such Restricted Payment is made or would arise immediately after giving effect (2) the Leverage Ratio (determined on a pro forma basis basis) thereto and the aggregate amount of all such Restricted Payments pursuant to this clause (vi) during any fiscal year of the Parent Guarantor does not exceed $100,000,000; provided that such Dollar limitation shall not be applicable, and such Restricted Payment shall not count against such Dollar limitation, if at the time of the making of such Restricted Payment and immediately after giving effect (on a pro forma basis) thereto, the Total Leverage Ratio is equal to such transaction) is greater or less than 2.00 3.00 to 1.00, no such dividends and (vii) the Parent Guarantor may pay any dividend or other distributions shall be paid by distribution or make any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with irrevocable Restricted Payment within 60 days after the terms date of declaration of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with dividend or pursuant to any of its (i) Employee Benefits Plans distribution or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that giving irrevocable notice with respect to (c)(ii) above, such Restricted Payments Payment, as the case may not exceed $1,000,000 in the aggregate be, if at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined declaration or notice such Restricted Payment would have complied with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause Guaranty (fincluding the other provisions of this Section 9(d), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower).
Appears in 2 contracts
Sources: Participation Agreement (Regeneron Pharmaceuticals Inc), Guaranty (Regeneron Pharmaceuticals Inc)
Restricted Payments. Make Declare or make, or permit any Subsidiary (other than any Subsidiary Outside Company) to declare or make, any Restricted PaymentsPayment, or incur, or permit any Subsidiary (other than any Subsidiary Outside Company) to incur, any obligation (contingent or otherwise) to do so, except as followsthat:
(a) each Subsidiary may declare and make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) the Borrower may make distributions to the Trust to permit the Trust to satisfy expenses of the Trust that relate to the Borrower and its Subsidiaries;
(c) to the extent the Borrower remains a pass-through entity, the Borrower may make distributions to the Trust to permit the Trust to pay federal and state income taxes then due and owing by the Trust that are attributable to the Trust’s ownership of Equity Interests in the Borrower and the operations of the Borrower and its Subsidiaries, so long as the amount of such distributions for the payment of taxes shall not be greater than the amount such taxes would have been had the Borrower not filed consolidated income tax returns with the Trust;
(d) the Borrower and the Portfolio Companies may pay Management Fees to the Manager, and reimburse the Manager for its reasonable expenses incurred in connection with its management of the Borrower, pursuant to and in accordance with the terms of the Management Fee Agreement and the other Management Fee Documents, each as in effect on the date hereof (provided, that (i) Borrowers may pay dividends any amounts paid by the Borrower under the Management Fee Agreement shall be net of amounts paid by the Portfolio Companies to the Manager or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or its Affiliates pursuant to the Management Fee Documents to which the Portfolio Companies are party and (ii) a Subsidiary the making and receipt of payments under the Management Fee Documents shall be subject to the provisions of the Management Fee Subordination Agreement);
(e) Subsidiaries may pay dividends Integration Services Fees, in each case to the extent that (i) such fees are reasonable and customary based on the applicable acquisition or other distributions to sale and (ii) such fees have been approved by the board of directors (or equivalent governing body) of the applicable Portfolio Company or Outside Company and by the compensation committee of the Borrower;
(f) the Borrower may make Allocation Member Distributions;
(g) the Borrower may make Restricted Payments if, after giving effect thereto and the incurrence of any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this AgreementIndebtedness in connection therewith, and provided further that if (1i) a Default or no Event of Default shall have exists or would result therefrom (and, assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of the then most recently ended twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder, the Borrower would be in compliance with Section 7.11(a) on a Pro Forma Basis), and be continuing (ii) either (A) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000, or (2B) the Consolidated Fixed Charge Coverage Ratio for the most recent twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder, calculated on a Pro Forma Basis giving effect to any such Restricted Payment by the Borrower and all other such Restricted Payments by the Borrower during such period as charges in the denominator of the Consolidated Fixed Charge Coverage Ratio, is greater than 1.00 to 1.00;
(h) each Portfolio Company may purchase or redeem shares of its preferred stock from any one or more shareholders:
(i) with Intercompany Debt permitted hereunder if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (A) no Event of Default exists or would result therefrom, (B) the Consolidated Total Leverage Ratio as of the last day of the most recently ended twelve-month period for which financial statements have been delivered hereunder (determined calculated on a Pro Forma Basis assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of such period) is less than 2.00 to 1.00, and (C) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000;
(ii) [reserved]; and
(iii) with proceeds (net of reasonable direct costs incurred in connection therewith, including legal, accounting and investment banking fees, professional fees and expenses, and taxes paid or reasonably estimated by the Borrower to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements)) of a sale or issuance by the Trust of common Equity Interests in the Trust, which proceeds are contributed by the Trust to the Borrower and further contributed by the Borrower to such Portfolio Company and actually used by such Portfolio Company to purchase or redeem shares of its preferred stock substantially concurrently with such sale or issuance and contributions;
(i) each Portfolio Company may purchase or redeem shares of its common and/or preferred Equity Interests from any one or more minority shareholders in unlimited amounts, provided that no such purchase or redemption shall be made by a Portfolio Company unless (A) such Portfolio Company is in compliance with the financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such transactionproposed purchase or redemption, (B) is greater than 2.00 no Event of Default exists or would result therefrom and (C) after giving effect to 1.00such to such proposed purchase or redemption and the incurrence of any Indebtedness in connection therewith, no such dividends or other distributions the Borrower shall be paid by any Guarantor in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is the Administrative Agent in accordance with the terms provisions of such shareholder rights planthis Agreement;
(cj) any Borrower to the extent due and payable and permitted under the applicable subordination provisions thereof, the Portfolio Companies may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends regularly scheduled payments in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunderPermitted Earn Out Obligations, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does revolver borrowing availability under the Intercompany Debt Documents between the Borrower and the applicable Portfolio Company after giving effect to such payment shall be not exceed 5% of Consolidated Tangible Net Worth as determined as less than the product of the fiscal quarter immediately preceding Portfolio Company EBITDA of such Portfolio Company for the date twelve month period ending on the last day of determination; and the month for which a Compliance Certificate has most recently been delivered to the Administrative Agent in accordance with this Agreement times 0.25, (ii) when combined such Portfolio Company is in compliance with the amount financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such payment, (iii) no Event of all purchases of Equity Securities made under Section 7.06(e)Default exists or would result therefrom and (iv) after giving effect to such to such payment, the total Borrower shall be in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the aggregate over the life provisions of this Agreement; provided, further, that and
(k) the provisions Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowersuch Person.
Appears in 2 contracts
Sources: Fourth Forbearance Agreement and Fourth Amendment to Credit Agreement (Compass Group Diversified Holdings LLC), Credit Agreement (Compass Group Diversified Holdings LLC)
Restricted Payments. Make (a) None of the Guarantors shall, and the Company shall cause the Guarantors not to, directly or indirectly:
(1) (i) declare or pay any Restricted Paymentsdividend or make any distribution of Collateral to any Person other than a Guarantor or (ii) make any Investment of Collateral, except other than an Investment in a Guarantor; provided, that any distribution of Collateral to a Subsidiary that is not a Guarantor or any Investment of Collateral in a Subsidiary that is not a Guarantor are permitted so long as followssuch Subsidiary executes and delivers a supplemental indenture to this Indenture providing for a guarantee by such Subsidiary and that the applicable Subsidiary or such Guarantor receiving Collateral shall have concurrently therewith executed any and all documents, financing statements, agreements and instruments, and taken all further action that may be required under applicable law (to the extent required under this Indenture and/or the Security Documents) in order to grant and perfect a first-priority Lien in such Collateral for the benefit of the Notes, in each case, pursuant to Section 4.17 hereof; or
(2) use any Collateral to purchase, redeem or otherwise acquire for value any Equity Interests of an Equity Pledge Guarantor or any direct or indirect parent of an Equity Pledge Guarantor.
(b) The Company shall not, directly or indirectly (including through its Subsidiaries), declare or pay any dividend on or make any other payment or distribution (whether made in cash, securities or other property) with respect to any of the Company’s Capital Stock (including, without limitation, any payment in connection with any merger or consolidation involving the Company) to the direct or indirect holders of the Company’s Capital Stock in their capacity as holders. The foregoing provisions do not prohibit:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock the payment by the Company of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that dividend within 60 days after the total date of all its declaration if at such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over date of its declaration such payment would have been permitted by the life provisions of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsSection 4.11;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan making dividends, payments or redeem such rights, provided that such redemption is distributions by the Company payable solely in accordance with common Equity Interests of the terms of such shareholder rights planCompany;
(c) any Borrower may make Restricted Payments in connection with or pursuant repurchases of Equity Interests deemed to any of its occur upon (i) Employee Benefits Plans the exercise of stock options, warrants or in connection with convertible securities issued as compensation if such Equity Interests represent a portion of the employment, termination or compensation of its service providers, employees, officers or directors, exercise price thereof and (ii) to repurchase Equity Securities the withholding of a Borrower which portion of the Equity Interests granted or awarded to an employee to pay taxes associated therewith (or a shareholder is selling whether dividend or distribution to finance such a deemed repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in by the aggregate at any time there are Outstanding ObligationsCompany); and Adesto Technologies Corporation Credit Agreementand
(d) making payments to any Subsidiary future, current or former employee, director, officer, member of management or consultant of the Company, any Borrower may declare or pay any ratable dividends in respect of its Equity Securities Subsidiaries pursuant to any management equity plan or purchase stock option plan or redeem shares any other management or employee benefit plan or agreement or any equity subscription or equity holder agreement and any other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, members of its Equity Securities management or make distributions to shareholders not otherwise permitted hereunderconsultants, provided that (i) the in an aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not to exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower100.0 million per calendar year.
Appears in 2 contracts
Sources: Indenture (DISH Network CORP), Indenture (SNR Wireless LicenseCo, LLC)
Restricted Payments. Make The Borrower shall not, and shall not permit any of its Material Subsidiaries to, declare, pay or make, or agree to pay or make, directly or indirectly, any Restricted PaymentsPayment, except as followsthat:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a so long as no Default or Event of Default shall have occurred and be is continuing or (2) would be caused thereby and the Net Leverage Ratio (determined on a pro forma basis after giving effect as at the most recently completed Rolling Period was equal to such transaction) is greater or less than 2.00 to 1.003.50:1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any the Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities and may purchase its Equity Securities pursuant to any normal course issuer bid or purchase restricted share unit plan effected in accordance with applicable Laws;
(b) a Subsidiary Guarantor may declare and pay dividends or make a return of capital with respect to its Equity Securities, in each case to any other Credit Party or a Restricted Intermediary Shareholder, provided that (except in the case of any payment of cash dividends by a Subsidiary Guarantor to another Credit Party or a Restricted Intermediary Shareholder) the Administrative Agent shall have received such confirmations, supplements, amendments and other documents, instruments or opinions, and the Credit Parties shall have taken such other actions, as may be required under the Security Documents or as may be requested by the Administrative Agent, acting reasonably, in order to confirm the continued validity and perfection of the Liens of the Administrative Agent in the Collateral pursuant to the Security Documents following the payment of such dividend or such return of capital;
(c) any Wholly-Owned Subsidiary that is not a Subsidiary Guarantor may make a return of capital with respect to its Equity Securities to the Borrower or any other Wholly-Owned Subsidiary of the Borrower;
(d) any Wholly-Owned Subsidiary that is not a Subsidiary Guarantor may pay dividends with respect to its Equity Securities to the Borrower or any other Wholly-Owned Subsidiary of the Borrower;
(e) any Material Subsidiary that is not a Wholly-Owned Subsidiary may make a return of capital to its shareholders, members or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Securities in the Subsidiary making such return of capital receives, or is entitled to receive, at least its proportionate share thereof (based upon its relative holding of the Equity Securities in the Subsidiary in respect of which such return of capital is being made and taking into account the relative preferences, if any, of the various classes of Equity Securities of such Subsidiary);
(f) any Material Subsidiary that is not a Wholly-Owned Subsidiary may pay dividends to its shareholders, members or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Securities in the Subsidiary paying such dividends receives, or is entitled to receive, at least its proportionate share thereof (based upon its relative holding of the Equity Securities in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of Equity Securities of such Subsidiary);
(g) the Borrower and its Material Subsidiaries may make payments pursuant to and in accordance with stock option plans, profit sharing plans or other benefit plans for its management or employees;
(h) the Borrower may pay reasonable and customary fees and expenses to independent directors;
(i) a Subsidiary Guarantor may redeem shares any of its Equity Securities held by any other Credit Party or make distributions to shareholders not otherwise permitted hereunder, a Restricted Intermediary Shareholder provided that after giving effect to such redemption, the Borrower continues to own, directly or indirectly, all of the remaining Equity Securities of such Subsidiary Guarantor and that the Administrative Agent shall have received such confirmations, supplements, amendments and other documents, instruments or opinions, and the Credit Parties shall have taken such other actions, as may be required under the Security Documents or as may be requested by the Administrative Agent, acting reasonably, in order to confirm the continued validity and perfection of the Liens of the Administrative Agent in the Collateral pursuant to the Security Documents following such redemption; and
(ij) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or any Material Subsidiary may make payments of principal of and interest on Indebtedness permitted pursuant to any wholly owned Subsidiary of BorrowerSection 6.1(1)(d).
Appears in 2 contracts
Sources: Fifth Amendment Agreement (Eldorado Gold Corp /Fi), Credit Agreement (Eldorado Gold Corp /Fi)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, except as followsthat:
(a) (i) Borrowers each Subsidiary may make Restricted Payments to the Borrower and any Subsidiary that owns an Equity Interest in such Subsidiary, (ii) so long as no Default shall have occurred and be continuing or would result therefrom, each Subsidiary may make Restricted Payments to the Borrower, the Guarantors and any other Person that owns an Equity 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 and (iii) for so long as such Subsidiary is a member of a group filing a consolidated, combined or unitary return with the Borrower, such Subsidiary may make Restricted Payments to the Borrower and any other holder of direct Equity Interests of such Subsidiary permitted hereunder in order to pay dividends consolidated, combined or unitary federal, state or local taxes which payments by such Subsidiary are not in excess of the tax liabilities that would have been payable by such Subsidiary and its Subsidiaries on a stand-alone basis;
(b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of capital its common stock of or other common Equity Interests or Indebtedness permitted pursuant to Section 6.03(f);
(d) each Immaterial Subsidiary may make Restricted Payments to any Loan Party or another Immaterial Subsidiary;
(e) the Borrower or any Subsidiary of its Subsidiaries may purchase (i) Equity Interests in any Loan Party or options with respect to Equity Interests in any Loan Party held by directors, employees or management of the Borrower or any of its Subsidiaries (or their estates or authorized representatives) in connection with the death, disability or termination of employment of any such directors, employees or management and (ii) a Subsidiary may pay dividends or other distributions to Equity Interests in any Borrower or to another SubsidiaryLoan Party for the purpose of holding such Equity Interest for future issuance under an employee stock plan; provided that the total aggregate amount of all such dividends or other distributions to Subsidiaries which are not Guarantors shall payments made under clauses (i) and (ii) after the Closing Date do not exceed $300,000 25,000,000 in any fiscal year and $50,000,000 in the aggregate; provided, further, that any such amount permitted to have been made but not made in the preceding fiscal years may be carried over the life of this Agreement, and provided further that if used in any subsequent fiscal year;
(1f) a Default or so long as no Event of Default shall have occurred and be continuing or (2) would immediately result therefrom, the Leverage Ratio (determined on a pro forma basis after giving effect Borrower and each Subsidiary may declare and make dividend payments or repurchase Equity Interests of the Borrower in an aggregate amount not to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsexceed $50,000,000 per fiscal year;
(bg) so long as no Event of Default shall have occurred and be continuing or would immediately result therefrom, the Borrower may make, during the period from the Closing Date to the latest Termination Date, other Restricted Payments in an aggregate amount not to exceed (i) $150,000,000 per fiscal year for fiscal 2013 and 2014 and (ii) $125,000,000 per fiscal year for each fiscal year thereafter;
(h) the Borrower may make other Restricted Payments in an aggregate amount that, when aggregated with the Investments made under Section 6.02(n), in each case during the period from the Closing Date to the latest Termination Date, shall not exceed $10,000,000;
(i) so long as no Default shall have occurred and be continuing or would result therefrom, the Borrower and any of its Subsidiaries may repurchase Equity Interests of a Subsidiary from any Person other than the Borrower and its Subsidiaries so long as the resulting Investment would otherwise be permitted under Section 6.02;
(j) the Borrower may make Restricted Payments in connection with the simultaneous exercise by officers, directors and employees of warrants, options and similar instruments, and other Restricted Payments in connection with employee compensation plans (including without limitation in connection with taxes paid or payable upon vesting of restricted shares);
(k) the Borrower may make Restricted Payments in an amount equal to the original principal amount of the Term Advances;
(l) the Borrower may distribute rights pursuant to a shareholder stockholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder stockholder rights plan;
(cm) any the Borrower may make Restricted Payments in connection with or pursuant to any repurchase fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversions of convertible securities;
(in) Employee Benefits Plans the Borrower or any Subsidiary may receive or accept the return to the Borrower or any Subsidiary of Equity Interests of the Borrower or any Subsidiary constituting a portion of the purchase price consideration in settlement of indemnification claims;
(o) the Borrower or any Subsidiary may make cash payments in lieu of fractional shares in connection with the employment, termination conversion of any Equity Interests or compensation make cash settlement payments upon the exercise of warrants to purchase its service providers, employees, officers Equity Interest or directors, and “net share settle” warrants;
(iip) payments or distributions to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is dissenting stockholders pursuant to a repurchase right or otherwiseapplicable law;
(q) the Borrower may enter into, provided, however, that with respect to exercise its rights and perform its obligations under Permitted Call Spread Swap Agreements; and
(c)(iir) above, such additional Restricted Payments may in an aggregate amount not to exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary sum of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and Cumulative Equity Amount plus (ii) when combined an amount (which may not be negative) equal to 50% of the cumulative Excess Cash Flow for all fiscal years (commencing with the amount of all purchases of Equity Securities made under Section 7.06(efiscal year ending December 31, 2014 and ending with the most recently completed fiscal year), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Polycom Inc), Credit Agreement (Polycom Inc)
Restricted Payments. Make any Restricted PaymentsPayment or apply or set apart any of their assets therefor or agree to do any of the foregoing other than a redemption by Consoltex Group of one class of its issued and outstanding capital stock in consideration of the shares of another class of capital stock not previously issued or outstanding; (I) PROVIDED, except as follows:
HOWEVER, that (a) IF the ratio of Consolidated Total Debt to Consolidated EBITDA is less than 3.00 to 1.00 as of the last day of the most recently ended Four-Quarter Period, THEN Consoltex Group may, with the prior written consent of the Required Lenders (i) Borrowers which consent shall not be unreasonably withheld or delayed, it being understood that the existence of a Default or an Event of Default shall be a reasonable basis on which the Required Lenders may withhold consent), declare or pay dividends or make other distributions of property to its shareholders or redeem, repurchase, retire, defease or otherwise acquire for value shares of its issued and outstanding capital stock; (b) any Subsidiary of a Borrower may declare and pay dividends to such Borrower or any Subsidiary of such Borrower that is a Guarantor; (c) any Borrower or any Subsidiary may declare dividends or make distributions in each case payable solely in shares of its capital stock PROVIDED that a Change in Control shall not result from such dividend or distribution, and PROVIDED FURTHER that if such shares are transferred to a Borrower, Guarantor or Subsidiary in connection with such a dividend or distribution, the shares shall be pledged under the applicable Pledge Agreement and delivered to the US Collateral Agent or the Canadian Collateral Trustee, as applicable; and (d) the issuers of any Borrower or any Subsidiary or the Subordinated Debt may (i) pay interest thereon in accordance with the terms thereof as in effect on the Closing Date in both the Subordinated Indenture and in the Subordinated Notes and (ii) a Subsidiary may pay dividends not redeem, retire, defease or other distributions to otherwise acquire for value any Borrower principal amount of the Subordinated Debt for any reason whether as an optional or to another Subsidiarymandatory redemption except as otherwise permitted by SECTIONS 11.6(B)(II)(Z) and financed, if not by the proceeds of asset sales, either from cash flow derived from continuing business operations or from Advances; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors and (II) PROVIDED FURTHER, HOWEVER, that, IF there shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) then exist a Default or Event of Default shall have occurred and be continuing immediately prior to or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00the foregoing, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower THEN Consoltex Group may make any one or more Restricted Payments to AIP in connection with or pursuant an aggregate amount not to any of its (i) Employee Benefits Plans or in connection with exceed the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase AIP Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in Contribution less the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary stated amount of any Borrower may declare or pay any ratable dividends in respect outstanding LGHBV Letter of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerCredit.
Appears in 1 contract
Sources: Credit Agreement (Consoltex Inc/ Ca)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, except as followsthat:
(a) each Company Group Party may make Restricted Payments to the Borrower, or to any other Person that owns a direct Equity Interest in such Company Group Party, ratably according to their respective holdings of the type of Equity Interests in respect of which such Restricted Payment is being made;
(ib) Borrowers the Borrower and each Company Group Party may pay dividends declare and make dividend payments or other distributions payable solely in shares of capital the common stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms common Equity Interests of such shareholder rights planPerson;
(c) any the Borrower and each Company Group Party may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(d) the Borrower may make Restricted Payments declare and pay dividends in cash or Cash Equivalents to Holdings not to exceed an amount necessary to permit Holdings and Parent to pay (i) reasonable and customary corporate (including appropriate allocations of shared costs and expenses of the corporate group of the Equity Investor) and operating expenses (including reasonable out-of-pocket expenses for legal, administrative and accounting services provided by third parties, umbrella insurance costs, and compensation, benefits and other amounts payable to officers and employees in connection with or pursuant to any their employment in the ordinary course of its (ibusiness) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) so long as the Borrower is properly treated as a disregarded entity and Holdings is properly treated as a partnership for U.S. federal and applicable state and local income tax purposes, distributions to repurchase Equity Securities Holdings which distributions shall be used by its equity holders to discharge the relevant U.S. federal, state and local income tax liabilities of a Borrower which a shareholder is selling whether such repurchase is equity holders attributable to the Borrower; provided that the amount of any distribution pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and this clause (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum amount that the Borrower would be required to pay in respect of $100,000 in the aggregate over relevant U.S. federal, state and local income taxes were it to pay such taxes as a stand alone corporate taxpayer, taking into account any net operating loss carryovers and other tax attributes arising from the life of this AgreementClosing Date; provided, further, that the provisions of any distribution pursuant to this clause (ii) shall be used to discharge the relevant tax liability of each such equity owner within 90 days of the distribution;
(e) the Borrower and each Company Group Party may issue common Equity Interests to a Loan Party or, in the case of a Company Group Party, another Company Group Party, in each case that is its direct parent;
(f)) so long as no Default has occurred and is continuing or would result from such Restricted Payment, the Borrower may declare and pay dividends in cash or Cash Equivalents to Holdings from Available Cash; provided that immediately after giving effect to such dividend payment or other distribution, the Borrower shall be in pro forma compliance with all of the covenants set forth in Section 7.11;
(g) the Borrower may declare and pay dividends in cash or Cash Equivalents to Holdings not restrict to exceed an amount necessary to permit Holdings and Parent to pay franchise fees or similar taxes and fees required to maintain its corporate existence;
(h) any Subsidiary from declaring Restricted Payments made pursuant to the Exchange Agreement; and
(i) to the extent constituting a Restricted Payment, Restricted Payments by Holdings or paying dividends Borrower as required pursuant to any Borrower the Management Services Agreement to (i) pay monitoring, consulting, management, transaction, advisory, termination or similar fees payable to any wholly owned Subsidiary the Equity Investor and indemnities, reimbursements and reasonable and documented out-of-pocket fees and expenses of Borrowerthe Equity Investor in connection therewith and (ii) reimburse the Equity Investor for costs and expenses of Holdings and its Subsidiaries incurred in the ordinary course of business, overhead costs and expenses and fees (including administrative, legal, accounting, insurance, cash management, reporting and compliance and/or similar expenses provided by third parties as well as trustee, directors, managers and general partner fees) which are paid by the Equity Investor on behalf of Holdings or its applicable Subsidiary.
Appears in 1 contract
Sources: Credit Agreement (NRG Yield, Inc.)
Restricted Payments. Make 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 PaymentsPayment, return any capital to its stockholders or make any distribution of its Property to its Equity Interest holders, except as follows:
(a) (i) Borrowers the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock);
(ii) Subsidiaries may declare and pay dividends or any other distributions payable solely in shares of capital stock of any to the Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions Guarantor with respect to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorstheir Equity Interests;
(biii) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with stock option plans or pursuant to any other benefit plans for management or employees of the Borrower and its Subsidiaries;
(iiv) Employee Benefits Plans or the Borrower may make Restricted Payments in connection with the employment, termination or compensation of its service providers, directors’ or employees, officers ’ option agreement or directors, and (ii) to repurchase Equity Securities restricted stock agreements under any of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, Borrower’s incentive stock plans; provided, however, that with the aggregate amounts paid in respect to (c)(ii) above, such Restricted Payments may thereof do not exceed $1,000,000 2,500,000;
(v) after January 1, 2023, the Borrower may make Restricted Payments so long as, after giving effect thereto, the Payment Conditions are satisfied; and
(vi) so long as no Event of Default has occurred and is continuing, the Borrower may make Restricted Payments to the extent necessary to permit Holdings:
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses ) and franchise Taxes, and similar fees and expenses required to maintain the organizational existence of Holdings, in each case, which are reasonable and customary and incurred in the aggregate at ordinary course of business, plus any time there are Outstanding Obligations; reasonable and Adesto Technologies Corporation Credit Agreementcustomary indemnification claim made by any director, officer, member of management, manager, employee and/or consultant of Holdings, in each case, to the extent attributable to the ownership or operations of Holdings and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries);
(dB) to discharge the consolidated, combined, unitary or similar U.S. federal, state or local Tax liabilities of Holdings and its subsidiaries when and as due, to the extent such liabilities are directly attributable to the income of the Borrower and/or any Subsidiary of the Borrower; provided that the amount of any Borrower may declare or pay any ratable dividends such payment in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) taxable year does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases Taxes that the Borrower and/or its applicable Subsidiary would have paid as standalone companies or as a standalone group taking into account any available deductions, losses and credits;
(C) to pay audit and other accounting and reporting expenses of Equity Securities made under Section 7.06(e)Holdings to the extent such expenses are attributable to the Holdings and/or its subsidiaries (but excluding, for the avoidance of doubt, the total portion of all any such dividendsexpenses, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, furtherif any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries);
(D) to pay any insurance premium that is payable by, or attributable to, Holdings and/or its subsidiaries that is payable by Holdings (but excluding, for the avoidance of doubt, the portion of any such premium, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries);
(E) to pay (x) reasonable fees and expenses related to any debt and/or equity offering, investment and/or acquisition (whether or not consummated) permitted hereunder and (y) charges related to compliance with the provisions of this clause the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended; and
(fF) to pay reasonable and customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of Holdings to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its Subsidiaries, in the case of each of the foregoing clauses (A) through (F), shall not restrict so long as Holdings applies the amount of any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowersuch Restricted Payment for such purpose.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Battalion Oil Corp)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, except as followsthat:
(a) each Subsidiary may make Restricted Payments to the Borrowers, any Subsidiaries of the Parent Borrower that are Guarantors and any other Person that owns a direct Equity 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;
(ib) Borrowers the Parent Borrower and each of its Subsidiaries may pay dividends declare and make dividend payments or other distributions payable solely in shares the common stock or other common Equity Interests of capital stock such Person;
(c) the Parent Borrower may purchase, redeem or otherwise acquire its Equity Interests with the proceeds received from the substantially concurrent issue of new Equity Interests;
(d) the Borrowers may declare and pay cash dividends to Holdings or any other direct parent of the Borrowers in amounts not to exceed amounts necessary to permit Holdings or any other direct parent of the Borrowers, as the case may be, to pay (i) reasonable and customary corporate or limited liability company expenses and operating expenses relating to maintaining their ownership interest in the Borrowers (including reasonable out-of-pocket expenses for legal, administrative and accounting services provided by third parties, and compensation, benefits and other amounts payable to officers and employees in connection with their employment in the ordinary course of business and to board of director observers), (ii) franchise fees or similar taxes and fees required to maintain their corporate or limited liability company existence and (iii) for any taxable period during which the Borrowers are a member of a consolidated, combined, unitary or similar tax group of which Holdings is the common parent, the amount of any Taxes that the Borrowers and their Subsidiaries would have been required to pay for such year had the Borrowers and their Subsidiaries paid such taxes as a stand-alone taxpayer (or stand-alone group) (reduced by any such taxes paid directly by the Parent Borrower or any Subsidiary or of its Subsidiaries);
(iie) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of so long as no Default shall have occurred and be continuing (or (2would result therefrom) the Leverage Ratio Borrowers may pay dividends to Holdings and Holdings may use the proceeds thereof to, in each case, repurchase, redeem or otherwise acquire or retire Equity Interests of Holdings held by officers, directors or employees of such Persons, as the case may be, and its Subsidiaries (determined on a pro forma basis after giving effect or their estates or trusts) upon the death, disability, retirement or termination of employment of any such officer, director or employee; provided that the aggregate amount of payments to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid Holdings by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that the Borrowers under this clause (ae) shall will not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsexceed $15,000,000 in any Fiscal Year of the Borrowers (with the unused portion of such scheduled amount available for use in the succeeding Fiscal Year);
(bf) any Borrower may distribute rights pursuant so long as no Default shall have occurred and be continuing (or would result therefrom), other Restricted Payments in an amount not to a shareholder rights plan or redeem such rights, provided that such redemption is exceed $20,000,000 in accordance with the terms of such shareholder rights planaggregate;
(cg) any Borrower may other Restricted Payments so long as the RP Conditions are satisfied;
(h) the Borrowers shall be permitted to make other Restricted Payments in connection with an aggregate amount not to exceed $7,000,000 in order to allow Holdings to purchase, redeem or pursuant to any otherwise acquire its Equity Interests from stockholders of its Holdings other than the Sponsors; and
(i) Employee Benefits Plans Restricted Payments on or about the Amendment No. 1 Effective Date in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding ObligationsTransactions.; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.and
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Restricted Payments. Make Directly or indirectly through any manner or means nor shall it permit any of its Subsidiaries directly or indirectly through any manner or means, 149 declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Payments, Payment except as follows:
that: (a) (i) Borrowers any Subsidiary of the Parent may declare and pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or make other distributions to any Borrower the Parent or to another its other Subsidiaries (and, in the case of a Restricted Payment by a Subsidiary that is not a Wholly-Owned Subsidiary, to the Parent and any of its other Subsidiaries and to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests); provided that (b) the total Spanish Borrower may make regularly scheduled payments of all such dividends interest in respect of the Senior Notes and the Senior Refinancing Notes in accordance with the terms of, and only to the extent required by the Senior Notes Documents or the Senior Refinancing Notes Documents, as applicable; (c) the Parent and its Subsidiaries, may (A) make repurchases of the Senior Notes, the Senior Refinancing Notes, or other distributions unsecured Indebtedness of the Parent or its Subsidiaries; provided, that unless the Leverage Ratio (determined for any such period by reference to Subsidiaries which are the most recent Compliance Certificate delivered in accordance with Section 5.01(c) hereof) would not Guarantors be greater than 3.75:1.00 after giving effect to such repurchase, the aggregate amount of payments under this paragraph (c) shall not exceed $300,000 over the life Available Amount; and (B) redeem the Senior Notes in full with the Net Cash Proceeds of the Senior Refinancing Notes; (d) the Parent may purchase its common stock or common stock options from present or former officers, directors or employees of the Group upon the death, disability or termination of employment of such officer or employee, provided, that unless the Leverage Ratio (determined for any such period by reference to the most recent Compliance Certificate delivered in accordance with Section 5.01(c) hereof) would not be greater than 3.75:1.00 after giving effect to such purchase, the aggregate amount of payments under this Agreement, and provided further that if paragraph (1d) a (net of any proceeds received by the Parent subsequent to the Closing Date in connection with resales of any common stock or common stock options so purchased) shall not exceed the Available Amount; (e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Parent may declare and pay cash dividends with respect to its common stock (2so long as such declared dividend is actually paid within ninety (90) days of such declaration) (i) so long as the Leverage Ratio Group shall be in compliance with the financial covenant set forth in Section 6.07 (determined whether or not then tested) on a pro forma basis after giving effect to such transactionRestricted Payment as of the last day of the Fiscal Quarter most recently ended, in the ordinary course of business consistent with past practices in an amount not to exceed in respect of any Fiscal Year, 40% of Consolidated Net Income for such Fiscal Year (unless the Parent has provided an irrevocable written notice to the Administrative Agent stating the Parent’s intention not to make any additional dividends with respect to such Fiscal Year, in which case the Parent may not make any further dividends with respect to such Fiscal Year pursuant to this Section 6.04(e)(i)) is greater than 2.00 to 1.00which amounts may be paid in installments, the first, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms earlier than December of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with Fiscal Year and the last, no later than the following Fiscal Year or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth ordinary course so long as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e)after giving effect thereto, the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.Leverage 150
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Restricted Payments. Make Declare or pay any dividends (other than dividends payable solely in shares of its capital stock) or make any other distribution to any security holder, whether in cash, property, securities or a combination thereof, or directly or indirectly redeem, repurchase, retire or otherwise acquire for a consideration, any shares of any class of its respective capital stock or other ownership interest or set apart any sum for the aforesaid purposes (any such dividend, distribution, redemption, purchase, retirement or acquisition being referred to herein as a "Restricted Payments, Payment") except as follows:
(a) (i) Borrowers may each Subsidiary shall be authorized to distribute to any Loan Party and Holdings shall be authorized to distribute to Alleghany such funds as shall be required to pay the obligations of such Person for reasonable federal, state, local and foreign income tax purposes in accordance with the Tax Sharing Agreement dated as of August 1, 1996, between Alleghany and Holdings,
(ii) each Subsidiary shall be authorized to make dividends or distributions from time to time to Holdings or another Subsidiary provided that a Loan Party shall not make dividends or distributions to any Subsidiary other than another Loan Party, and
(iii) Holdings shall be authorized to declare or pay dividends or other distributions payable solely in shares respect of its capital stock during any fiscal year in an amount not to exceed 25% of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends Holdings' Net Income during the preceding fiscal year; provided, however, that no such dividend or other distributions to distribution shall be declared or paid by Holdings if any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing continuing; and provided further that if payment of a dividend or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which distribution is not also a Guarantor; provided, however, that otherwise prohibited under this clause (aiii), Holdings may pay such dividend or distribution if the declaration thereof was permitted under this clause (iii) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights . Any Restricted Payment permitted pursuant to this Section 7.3 may be made in the form of a shareholder rights plan dividend or redeem distribution as the Person making such rightsRestricted Payment shall determine. The making of any loan to an Affiliate (other than Holdings or a Subsidiary), or the repayment of any Indebtedness to an Affiliate (other than Alleghany (provided that such redemption repayment is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Alleghany Subordination Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), Holdings or a Subsidiary) shall be a Restricted Payment for the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerpurposes hereof.
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Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except as followsthe following:
(a) each Restricted Subsidiary of a Loan Party may make Restricted Payments to the holder of its Equity Interests, provided that any such Restricted Payment to a Person that is not a Loan Party shall not exceed such Person’s ratable share of the Restricted Payments so made;
(ib) Borrowers the Loan Parties and each Restricted Subsidiary may pay dividends declare and make dividend payments or other distributions payable solely in shares the common stock or other Equity Interests of capital stock of any such Person, other than Disqualified Stock;
(c) [Reserved];
(d) the Borrower or any Subsidiary or (ii) a Restricted Subsidiary may pay dividends (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other distributions acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Borrower or to another any Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall payments do not exceed $300,000 over 200,000 in any calendar year, provided that any unused portion of the life preceding basket for any calendar year may be carried forward to succeeding calendar years, so long as the aggregate amount of all Restricted Payments made pursuant to this Agreement, and provided further that if subsection (1d) a Default or Event of Default shall have occurred and be continuing or in any calendar year (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (acarry forward) shall not restrict dividends exceed $500,000; provided further that cancellation of Indebtedness owing to the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries from members of management of the Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsprovision of this Agreement;
(be) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan[Reserved];
(cf) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Borrower may make in exchange for, or out of the proceeds of the substantially concurrent issuance or sale (other than to a Restricted Payments Subsidiary or to an employee stock ownership plan) of Equity Interests of the Borrower (other than Disqualified Stock);
(g) repurchases of Equity Interests deemed to occur (i) upon exercise of stock options, stock appreciation rights or warrants if such Equity Interests represent a portion of the exercise price of such options, stock appreciation rights or warrants or (ii) for purposes of satisfying any required tax withholding obligation upon the exercise or vesting of a grant or award that was granted or awarded to an employee or director;
(h) the repurchase, redemption or other acquisition for value of Equity Interests of Borrower deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or pursuant to any other business combination of Borrower or its Subsidiaries, in each case, permitted under this Agreement; and
(i) Employee Benefits Plans other Restricted Payments, in cash or in connection with the employmentkind, termination or compensation of its service providers, employees, officers or directors, and (ii) not to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 750,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borroweraggregate.
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Restricted Payments. Make Declare or make, or permit any Subsidiary (other than any Subsidiary Outside Company) to declare or make, any Restricted PaymentsPayment, or incur, or permit any Subsidiary (other than any Subsidiary Outside Company) to incur, any obligation (contingent or otherwise) to do so, except as followsthat:
(a) each Subsidiary may declare and make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) the Borrower may make distributions to the Trust to permit the Trust to satisfy expenses of the Trust that relate to the Borrower and its Subsidiaries;
(c) to the extent the Borrower remains a pass-through entity, the Borrower may make distributions to the Trust to permit the Trust to pay federal and state income taxes then due and owing by the Trust that are attributable to the Trust’s ownership of Equity Interests in the Borrower and the operations of the Borrower and its Subsidiaries, so long as the amount of such distributions for the payment of taxes shall not be greater than the amount such taxes would have been had the Borrower not filed consolidated income tax returns with the Trust;
(d) the Borrower and the Portfolio Companies may pay Management Fees to the Manager, and reimburse the Manager for its reasonable expenses incurred in connection with its management of the Borrower, pursuant to and in accordance with the terms of the Management Fee Agreement and the other Management Fee Documents, each as in effect on the date hereof as of the Fifth Amendment Effective Date (provided, that (i) Borrowers may pay dividends any amounts paid by the Borrower under the Management Fee Agreement shall be net of amounts paid by the Portfolio Companies to the Manager or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or its Affiliates pursuant to the Management Fee Documents to which the Portfolio Companies are party and (ii) a Subsidiary the making and receipt of payments under the Management Fee Documents shall be subject to the provisions of the Management Fee Subordination Agreement); provided, that prior to the waiver or other resolution of the Lugano Events of Default, from and after the Fifth Amendment Effective Date, the (i) Borrower shall not pay Management Fees to the Manager in an aggregate amount in excess of $5,000,00015,000,000 per fiscal quarter and (ii) the Portfolio Companies shall not pay management fees to the Manager in an aggregate amount in excess of $2,000,000 per fiscal quarter (provided, for the avoidance of doubt, such payments by Portfolio Companies shall not limit the payments by Borrower allowed by subsection (i) hereof), which payments shall be made in the ordinary course of business consistent with past practice;.
(e) Subsidiaries may pay dividends Integration Services Fees, in each case to the extent that (i) such fees are reasonable and customary based on the applicable acquisition or other distributions to sale and (ii) such fees have been approved by the board of directors (or equivalent governing body) of the applicable Portfolio Company or Outside Company and by the compensation committee of the Borrower;
(f) the Borrower may make Allocation Member Distributions;
(g) the Borrower may make Restricted Payments if, after giving effect thereto and the incurrence of any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this AgreementIndebtedness in connection therewith, and provided further that if (1i) a Default or no Event of Default shall have exists or would result therefrom (and, assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of the then most recently ended twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder,, (ii) the aggregate amount of such Restricted Payments would not be greater than $10,000,000 during any fiscal quarter of the Borrower unless the Consolidated Total Leverage Ratio of the Borrower would be in compliance with Section 7.11(a)not be greater than 4.50:1.00 on a Pro Forma Basis) as of the last day of such fiscal quarter, and be continuing (iiiii) either (A) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000, or (2B) the Consolidated Fixed Charge Coverage Ratio for the most recent twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder, calculated on a Pro Forma Basis giving effect to any such Restricted Payment by the Borrower and all other such Restricted Payments by the Borrower during such period as charges in the denominator of the Consolidated Fixed Charge Coverage Ratio, is greater than 1.00 to 1.00;10,000,000;
(h) each Portfolio Company may purchase or redeem shares of its preferred stock from any one or more shareholders:
(i) with Intercompany Debt permitted hereunder if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (A) no Event of Default exists or would result therefrom, (B) the Consolidated Total Leverage Ratio as of the last day of the most recently ended twelve-month period for which financial statements have been delivered hereunder (determined calculated on a Pro Forma Basis assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of such period) is less than 2.00 to 1.00, and (C) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000;
(ii) [reserved]; and
(iii) with proceeds (net of reasonable direct costs incurred in connection therewith, including legal, accounting and investment banking fees, professional fees and expenses, and taxes paid or reasonably estimated by the Borrower to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements)) of a sale or issuance by the Trust of common Equity Interests in the Trust, which proceeds are contributed by the Trust to the Borrower and further contributed by the Borrower to such Portfolio Company and actually used by such Portfolio Company to purchase or redeem shares of its preferred stock substantially concurrently with such sale or issuance and contributions;
(i) each Portfolio Company may purchase or redeem shares of its common and/or preferred Equity Interests from any one or more minority shareholders in unlimited amounts, provided that no such purchase or redemption shall be made by a Portfolio Company unless (A) such Portfolio Company is in compliance with the financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such transactionproposed purchase or redemption, (B) is greater than 2.00 no Event of Default exists or would result therefrom and (C) after giving effect to 1.00such to such proposed purchase or redemption and the incurrence of any Indebtedness in connection therewith, no such dividends or other distributions the Borrower shall be paid by any Guarantor in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is the Administrative Agent in accordance with the terms provisions of such shareholder rights planthis Agreement;
(cj) any Borrower to the extent due and payable and permitted under the applicable subordination provisions thereof, the Portfolio Companies may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends regularly scheduled payments in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunderPermitted Earn Out Obligations, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does revolver borrowing availability under the Intercompany Debt Documents between the Borrower and the applicable Portfolio Company after giving effect to such payment shall be not exceed 5% of Consolidated Tangible Net Worth as determined as less than the product of the fiscal quarter immediately preceding Portfolio Company EBITDA of such Portfolio Company for the date twelve month period ending on the last day of determination; and the month for which a Compliance Certificate has most recently been delivered to the Administrative Agent in accordance with this Agreement times 0.25, (ii) when combined such Portfolio Company is in compliance with the amount financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such payment, (iii) no Event of all purchases of Equity Securities made under Section 7.06(e)Default exists or would result therefrom and (iv) after giving effect to such to such payment, the total Borrower shall be in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the aggregate over the life provisions of this Agreement; provided, further, that and
(k) the provisions Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowersuch Person.
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Restricted Payments. Make The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payments, except as followsPayment except:
(a) any Restricted Subsidiary of the Borrower may declare and pay dividends or make other distributions ratably to (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or its equity holders, (ii) a Subsidiary may pay dividends or other distributions to any the Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2iii) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any the Borrower may distribute make Restricted Payments to redeem in whole or in part any of its Equity Interest (other than Disqualified Equity Interests) for another class of its Equity Interest or rights pursuant to a shareholder rights plan acquire its Equity Interest (other than Disqualified Equity Interests) or redeem such rights, with proceeds from substantially concurrent equity contributions or issuances of new Equity Interest (other than Disqualified Equity Interests); provided that the only consideration paid for any such redemption is Equity Interest of the Borrower or the proceeds of any substantially concurrent equity contribution or issuance of Equity Interest (other than Disqualified Equity Interests);
(c) the Borrower may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of of, and only to the extent required by, and subject to any subordination provisions contained in the indenture or other agreement pursuant to which such shareholder rights planSubordinated Indebtedness was issued;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans the Borrower or in connection with any Restricted Subsidiary may repurchase or retire its Equity Interests from present or former employees of the employmentBorrower or any Restricted Subsidiary upon the death, disability, retirement or termination or compensation of its service providers, employees, officers or directors, employment of such employee and (ii) to repurchase the Borrower may purchase, redeem or otherwise acquire any Equity Securities of a Borrower which a shareholder is selling whether such repurchase is Interest from its employees pursuant to a repurchase right the terms of any employee stock option or otherwise, any other employee benefit plan; 77 provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (ix) the aggregate amount paid or distributed of Restricted Payments pursuant to this clause (d) shall not exceed $50,000,000 per fiscal year and (y) any Restricted Payments permitted (but not made) pursuant to clause (x) of this clause (d) in any period prior fiscal year may be carried forward to any subsequent fiscal year so long as the aggregate amount of four consecutive quarters Restricted Payments made pursuant to this clause (excluding any amounts covered by subsection (bd) above) does shall not exceed 5% of Consolidated Tangible Net Worth as determined as $100,000,000;
(e) Restricted Payments made in connection with equity compensation that consist solely of the fiscal quarter immediately preceding withholding of shares to any employee in an amount equal to the date employee’s tax obligation on such compensation and the payment in cash to the applicable Governmental Authority of determinationan amount equal to such tax obligation; provided that the aggregate amount of such withholding and cash payments made during the term of this Agreement shall not exceed $75,000,000 (net of the amount received as reimbursement (including proceeds from the sale of the shares withheld));
(f) so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) when combined the Borrower shall be in pro forma compliance with the covenant set forth in Section 6.10 as of the last day of the most recently ended Fiscal Quarter or Fiscal Year for which financial statements have been delivered pursuant to Section 5.01(a) or (b) after giving effect to such Restricted Payment , Restricted Payments in an aggregate amount not to exceed the Available Amount determined at such time;
(g) so long as no Default or Event of all purchases of Equity Securities made under Section 7.06(e)Default has occurred and is continuing or would result therefrom, the total Borrower may declare and pay annual dividends in an aggregate amount not to exceed $51,000,000; and
(h) so long as no Default or Event of all such dividendsDefault has occurred and is continuing or would result therefrom, purchases or redemptions shall other Restricted Payments not otherwise permitted by the foregoing in an aggregate amount not to exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower100,000,000.
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Restricted Payments. Make The REIT and the Borrower shall not, and shall not permit any of their Subsidiaries to, declare or make any Restricted PaymentsPayment so long as any Default or Event of Default exists or would result therefrom. Notwithstanding the foregoing, except as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) unless a Default or Event of Default specified in Sections 7.2, 7.6 or 7.7 shall have occurred and be continuing continuing, or (2) if as a result of the Leverage Ratio (determined on a pro forma basis after giving effect occurrence of any other Event of Default the Obligations have been accelerated pursuant to such transaction) is greater than 2.00 to 1.00Section 8.1, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict the Borrower and its Subsidiaries and any other Subsidiary of the REIT may pay dividends or and distributions to the REIT and other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any holders of partnership interests in the Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant respect to any fiscal year ending during the term of this Agreement to the extent necessary for the REIT to distribute, and the REIT may so distribute, dividends and distributions to its shareholders in an aggregate amount not to exceed the amount required to be distributed for the REIT (i) Employee Benefits Plans or to remain in connection compliance with the employment, termination or compensation of its service providers, employees, officers or directors, Section 6.19 and (ii) to repurchase Equity Securities avoid the payment of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right U.S. federal or otherwisestate income or excise tax, provided, however, that and (b) with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower a Subsidiary REIT, such Subsidiary may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make and distributions to such Subsidiary REIT to the extent necessary for such Subsidiary REIT to distribute, and such Subsidiary REIT may so distribute, dividends and distributions to its shareholders not otherwise permitted hereunder, provided that (i) to maintain such Subsidiary REIT’s status as a “real estate investment trust” under the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; Code and (ii) when combined with to avoid the amount payment of all purchases of Equity Securities made under Section 7.06(e)U.S. federal or state income or excise tax. Subsidiaries other than the Borrower may, at any time, make Restricted Payments to the total of all such dividends, purchases or redemptions shall not exceed Borrower and the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerother Subsidiaries.
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Restricted Payments. Make The Borrower will not, and will not permit ------------------- any of its Subsidiaries to, make any Restricted PaymentsPayment, except as follows:
that (a) a wholly-owned Subsidiary of the Borrower may make a Restricted Payment to the Borrower or another wholly-owned Subsidiary of the Borrower, (b) provided no Default has occurred and is continuing or would result therefrom, (i) Borrowers the Borrower may redeem, purchase or otherwise acquire its capital stock or declare and pay dividends or other distributions payable solely in shares of on its capital stock of any Borrower or any Subsidiary or stock; (ii) a Subsidiary may pay dividends scheduled interest payments, optional redemptions or other distributions to any Borrower or to another Subsidiaryprepayments may be made on the Senior Notes; provided provided, however that without the total prior written consent of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this AgreementAdministrative -------- ------- Agent and the Banks, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2A) the Leverage Ratio (determined on a pro forma basis after giving effect to payment of such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall Indebtedness may not be paid guaranteed by any Guarantor to any Subsidiary of the Borrower which is not also a Guarantor; provided, however, that this clause Guarantor hereunder and the terms and provisions of any guaranties of such Indebtedness shall be no more onerous than the terms and provisions of the Guaranty or (aB) the Borrower shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors take any action that could result in the Obligations' failing to other Subsidiaries which are not Guarantors;
be pari passu to Indebtedness under the Senior Notes; (biii) any Subsidiary of the Borrower may distribute rights pursuant make payments to a shareholder rights plan or redeem the Borrower for all reasonable amounts owing to the Borrower in the ordinary course of business for the Borrower's and their Subsidiaries' pro rata share of such rightsordinary course items as insurance, taxes and professional fees and expenses, provided that such redemption is ordinary course items are incurred in accordance compliance with the terms arm's length requirements of such shareholder rights plan;
Section 6.8 and (civ) any capital stock of the Borrower may make Restricted Payments in connection with be purchased (or pursuant to the purchase thereof funded) or otherwise acquired by the Borrower or its Subsidiaries for any Code Section 401(k) plan, Code Section 423 plan or Plan of the Borrower or any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerSubsidiaries.
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Restricted Payments. Make The Borrower will not, nor will the Borrower permit any of its Subsidiaries to, declare or make, directly or indirectly, any (i) Restricted PaymentsPayment, except as followsexcept:
(a) the Borrower or any of its Subsidiaries may declare and pay or make Capital Distributions that are payable solely in additional shares of its common stock (or warrants, options or other rights to acquire additional shares of its common stock);
(i) Borrowers any Subsidiary of the Borrower may declare and pay dividends or make Capital Distributions to the Borrower or any other distributions payable solely Subsidiary, as applicable (provided, (A) in shares the case of capital stock a Restricted Payment by a non-wholly owned Subsidiary of the Borrower, to each owner of Equity Interests of such Subsidiary based on their relative ownership interests and (B) in the case of a Restricted Payment by any Subsidiary Guarantor, such Restricted Payment may be made only to the Borrower or any Subsidiary or Guarantor) and (ii) to the extent constituting a Subsidiary Restricted Payment, the Borrower and its Subsidiaries may pay dividends make Investments permitted by Section 7.05;
(c) the Borrower may, or may make Restricted Payments or other distributions to Holdings or any Borrower Intermediate Holdco in the amount required for such entity (or any Parent Entity) to (i) make any payment under the Indemnification Agreement or to another Subsidiarypay customary fees and operating expenses (including those respect to accounting, legal, director, corporate reporting and similar administrative functions, but excluding the payment of interest and fees in respect of Indebtedness of Holdings, any Intermediate Holdco or any Parent Entity of Holdings) and to pay other customary fees, and expenses necessary to maintain its corporate existence and franchises plus any actual, reasonable and customary indemnification claims made by directors or officers of Holdings, any Intermediate Holdco or any Parent Entity of Holdings, (ii) to pay franchise taxes, (iii) to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity issuance or offering or debt issuance, incurrence or offering, Disposition or acquisition, Investment or other transaction permitted by this Agreement, (iv) to pay customary salary, bonus and other benefits payable to officers, employees and consultants of Holdings, any Intermediate Holdco or any Parent Entity of Holdings to the extent such salaries, bonuses and other benefits are attributable solely to the ownership or operation of the Borrower and its Subsidiaries; provided and (v) that necessary to consummate the total Transactions or the proceeds of all such dividends which shall be distributed in connection with the Transactions;
(d) the Borrower may make Restricted Payments or other distributions in the amount required for Holdings, any Intermediate Holdco (or any Parent Entity) to Subsidiaries which are not Guarantors shall not exceed $300,000 over (A) pay Taxes owing by it, the life Borrower and any Subsidiary of this Agreementthe Borrower as part of a consolidated group, and provided further that if (1B) unless a Default or Event of Default shall have has occurred and be is continuing or (2) would result therefrom, effect the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00repurchase, no such dividends redemption, acquisition, cancellation or other distributions shall be paid retirement for value of the Equity Interests in Holdings (or any Parent Entity) or its Subsidiaries or to effect the termination of options to purchase Equity Interests of Holdings (or any Parent Entity), in each instance, held by any Guarantor to employee or owner of an Affiliated Dental Practice, a former or current directors, officers, consultants, managers and employees (or their estates, spouses or former spouses successors, executors, administrators, heirs, legatees or distributees) of Holdings (or any Subsidiary which is not also a Guarantor; provided, however, that this clause Parent Entity) or its Subsidiaries and (aC) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms pay Taxes of such shareholder rights plan;
directors, officers, consultants, managers and employees (cor their estates, spouses or former spouses successors, executors, administrators, heirs, legatees or distributees) any Borrower may make Restricted Payments in connection with any such repurchase, redemption, acquisition, cancellation or pursuant other retirement for value referred to any of its in clause (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(iiB) above; provided that, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount of all cash paid or distributed pursuant to clauses (B) and (C) above in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) calendar year does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of (i) $100,000 3.5 million, plus (ii) all Net Cash Proceeds obtained by the Borrower during such calendar year from the sale of such Equity Interests to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the aggregate over foregoing, 100% of the life unused amount of this Agreement; provided, further, that the provisions payments in respect of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.this
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Restricted Payments. Make Each of the Parent and the Borrower will not, and will not permit or cause any Restricted Paymentsof its Subsidiaries to, directly or indirectly, declare or make any dividend payment, or make any other distribution of cash, property or assets, in respect of any of its Capital Stock or any warrants, rights or options to acquire its Capital Stock, or purchase, redeem, retire or otherwise acquire for value any shares of its Capital Stock or any warrants, rights or options to acquire its Capital Stock, or set aside funds for any of the foregoing, except as followsthat:
(a) (i) Borrowers the Parent and any of its Subsidiaries may pay dividends declare and make dividend payments or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or its Capital Stock;
(ii) a Subsidiary each of the Borrower and its Subsidiaries may pay dividends or other distributions make payments to any Borrower or to another Subsidiary; the Parent for its proportionate share of the tax liability of the affiliated group of entities that file consolidated federal income tax returns, provided that the total of all such dividends or other distributions payments are used to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreementpay taxes, and provided further that if any tax refunds received by the Parent that are attributable to the Borrower or any of its Subsidiaries shall be returned promptly by the Parent to the Borrower;
(1iii) a Default or Event each Wholly Owned Subsidiary of Default shall have occurred the Borrower may declare and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends make dividend payments or other distributions shall be paid by any Guarantor to any the Borrower or to another Wholly Owned Subsidiary which is of the Borrower, in each case to the extent not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsprohibited under applicable Requirements of Law;
(biv) any the Parent may purchase, redeem or retire shares of its Capital Stock (and, without duplication, the Borrower may distribute dividend cash to the Parent in order to make such redemptions) in an aggregate amount not exceeding [$1,000,000] in any Fiscal Year to facilitate the payment of withholding tax by directors or employees arising from their exercise of rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with options for the terms of such shareholder rights plan;Parent’s Capital Stock; and
(cv) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or and make dividend payments and other distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in Parent for any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of Fiscal Year to enable the fiscal quarter immediately preceding the date of determination; Parent to pay directors’ fees and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerother ordinary and reasonable holding company operating expenses.
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Restricted Payments. Make The Parent Borrower will not, nor will the Parent Borrower permit any of its Restricted Subsidiaries to, make any Restricted PaymentsPayment, except as followsexcept:
(a) the Parent Borrower or any of its Restricted Subsidiaries may declare and pay or make Capital Distributions that are (i) Borrowers may pay dividends or other distributions payable solely in additional shares of capital its common stock or Qualified Equity (or warrants, options or other rights to acquire additional shares of any Borrower its common stock or any Subsidiary or Qualified Equity) and (ii) deemed to occur upon the exercise of stock options or warrants if such Capital Distribution represents a Subsidiary may pay dividends portion of the exercise price of such options or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorswarrants;
(b) any Restricted Subsidiary of the Parent Borrower may distribute rights pursuant declare and pay or make Capital Distributions to the Parent Borrower or any other Restricted Subsidiary, as applicable (provided, in the case of a shareholder rights plan or redeem such rightsCapital Distribution by a non-wholly owned Restricted Subsidiary of the Parent Borrower, provided that such redemption is in accordance with the terms Capital Distributions may be made to each owner of Capital Stock of such shareholder rights planRestricted Subsidiary based on their relative ownership interests);
(c) any the Parent Borrower may make Restricted Payments Capital Distributions in connection with or pursuant to the amount required for any Parent Entity (including, without limitation, any of its members or other owners), (i) Employee Benefits Plans to pay franchise taxes necessary to maintain the corporate existence of such Parent Entity, as applicable, (ii) to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity issuance or offering or debt issuance, incurrence or offering, disposition or acquisition, Investment or other transaction permitted by this Agreement, in each case to the extent relating to the Parent Borrower and its Restricted Subsidiaries, (iii) to pay customary salary, bonus and other benefits payable to officers, employees and consultants of any Parent Entity to the extent such salaries, bonuses and other benefits are attributable solely to the ownership or operation of the Parent Borrower and its Restricted Subsidiaries, including the Parent Entity’s proportionate share of such amounts relating to such parent entity being a public company and (iv) that are necessary to consummate the Transactions or the proceeds of which shall be distributed in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementTransactions;
(d) the Parent Borrower may make Capital Distributions in the amount required for any Subsidiary Parent Entity, to (A) pay federal, state, provincial, territorial, local and foreign income Taxes of a consolidated, combined or similar income tax group (a “Tax Group”) of which the Parent Borrower or the applicable Parent Entity is the common parent, with respect to any taxable year (or portion thereof ending after the date of this Agreement or any taxable year (or portion thereof) that is the subject of any audit adjustment after the date of this Agreement (to the extent of any Taxes attributable to such audit adjustments) with respect to which any Restricted Subsidiary is a member of such Tax Group, that are attributable to the taxable income of the Parent Borrower may declare or pay any ratable dividends and/or its Subsidiaries); provided that for each taxable period, the amount of such payments made in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) such taxable period in the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in amount that the aggregate over the life of this AgreementParent Borrower and its Subsidiaries would have been required to pay as a stand-alone Tax Group; provided, further, that the permitted payment pursuant to this clause (A) with respect to any Taxes of an Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Parent Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes, (B) effect the repurchase, redemption, acquisition, cancellation or other retirement for value of the Capital Stock on any Parent Entity or its Restricted Subsidiaries or to effect the termination of options to purchase Capital Stock of Parent Borrower (or any Parent Entity), in each instance, held by any employee, former or current directors, officers, consultants, managers and employees (or their estates, spouses or former spouses successors, executors, administrators, heirs, legatees or distributees) of Parent Borrower (or any Parent Entity) or its Restricted Subsidiaries, (C) the Parent Borrower may make Capital Distributions in the ordinary course pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent Borrower and its Restricted Subsidiaries and (D) pay Taxes of such directors, officers, consultants, managers and employees (or their estates, spouses or former spouses successors, executors, administrators, heirs, legatees or distributees) in connection with any such repurchase, redemption, acquisition, cancellation or other retirement for value referred to in clause (B), (C) and (D) above; provided that, the aggregate amount of all cash paid pursuant to clauses (B) and (D) above in any fiscal year does not exceed the sum of (i) $10,000,000, plus (ii) all Net Cash Proceeds obtained by the Parent Borrower during such fiscal year from the sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such fiscal year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 7.05(d) (before giving effect to any carry forward) may be carried forward to the immediately succeeding fiscal year (but not any other) and utilized to make payments pursuant to this Section 7.05(d) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year);
(e) the Parent Borrower may make Restricted Payments, or may make Restricted Payments to any Parent Entity to allow such entity to make payments, that the Parent Borrower would be permitted to make under Section 7.08(f), or (g);
(f) (i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in an aggregate amount not to exceed the greater of (A) $10,000,000 and (B) 10.00% of Consolidated EBITDA (calculated on a Pro Forma Basis) as of the last day of the most recently ended Testing Period on or prior to the date of determination in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year (including, for the avoidance of doubt, the period from the Closing Date to the end of the first calendar year thereafter) (before giving effect to any carry-over from the prior year) may be carried over to the immediately succeeding calendar year (but not any other); provided that the carried-over amounts shall not exceed the amount of Restricted Payments permitted to be made in the applicable calendar year (without giving effect to any carried-over amounts from the immediately preceding calendar year)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in aggregate amount not exceed the Available Amount at such time; provided that Restricted Payments made pursuant to this clause (f)(ii) with the portion of the Available Amount not constituting the Available Amount Equity Component shall only be permitted if, after giving Pro Forma Effect to such Restricted Payment the Total Net Leverage Ratio shall be less than 2.75 to 1.00;
(g) the Parent Borrower may (or may make Restricted Payments to allow any Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any Restricted Payment, split or combination thereof or any Permitted Acquisition or other Investment permitted by this Agreement 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;
(h) (i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in respect of prepayments, repurchases, redemptions or defeasances of any Subordinated Indebtedness or Unsecured Indebtedness, in each case, prior to the stated maturity thereof (it being understood that scheduled payments or mandatory prepayments shall be permitted to the extent permitted by the applicable Junior Debt Documents, Unsecured Debt Documents and this Agreement (other than this clause (h))), in an aggregate amount, not exceeding $15,000,000, (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in respect of prepayments, repurchases, redemptions or defeasances of any Subordinated Indebtedness or Unsecured Indebtedness, in each case, prior to the stated maturity thereof (it being understood that scheduled payments or mandatory prepayments shall be permitted to the extent permitted by the applicable Junior Debt Documents or Unsecured Debt Documents and this Agreement (other than this clause (h))), in an amount not exceed the Available Amount at such time; provided that Restricted Payments made pursuant to this clause (h)(ii) with the portion of the Available Amount not constituting the Available Amount Equity Component shall only be permitted if, after giving Pro Forma Effect to such Restricted Payment the Total Net Leverage Ratio shall be less than 2.75 to 1.00, (iii) the Parent Borrower or any Restricted Subsidiary may make Restricted Payments to prepay, repurchase, redeem or defease Subordinated Indebtedness or Unsecured Indebtedness with the proceeds of any Permitted Refinancing Indebtedness in respect of such Subordinated Indebtedness or Unsecured Indebtedness, as applicable, and (iv) the Parent Borrower or any Restricted Subsidiary may make Restricted Payments by converting or exchanging any such Indebtedness to Capital Stock (other than Disqualified Equity Interests) of the Parent Borrower or any of its Parent Entities or other Indebtedness permitted under Section 7.03;
(i) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.01 (other than clause (c)(ii) thereof) and Section 7.04, and the Parent Borrower or any Restricted Subsidiary may make any Restricted Payment to a Parent Entity, the Parent Borrower or any Restricted Subsidiary, as the case may be, as and when necessary to enable the Parent Entity, the Parent Borrower or any Restricted Subsidiary to effect such Restricted Payments;
(j) the payment of dividends and distributions within sixty (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 clause Section 7.06;
(f)k) Restricted Payments if, immediately after giving Pro Forma Effect to such Restricted Payment, the Total Net Leverage Ratio shall not restrict be less than 1.50 to 1.00;
(a) the redemption, repurchase, retirement or other acquisition of any Subsidiary from declaring Capital Stock (“Treasury Capital Stock”) of any Credit Party, in exchange for, or paying out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Capital Stock of the Parent Borrower (in each case, other than any Disqualified Equity Interests) (“Refunding Capital Stock”) and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividend thereon was permitted hereunder, the declaration and payment of dividend on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Capital Stock of any Parent Entity of the Parent Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to any such retirement; and
(m) Notwithstanding the foregoing and for the avoidance of doubt, nothing in this Section 7.05 shall prohibit (i) the repayment or prepayment of intercompany subordinated Indebtedness owed among the Parent Borrower and/or the Subsidiaries, in each case, to the extent otherwise permitted under Section 7.04 or (ii) substantially concurrent transfers of credit positions in connection with intercompany debt restructurings so long as such Indebtedness is permitted by Section 7.03 after giving effect to any wholly owned Subsidiary of Borrowersuch transfer.
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Sources: Credit Agreement (PGT, Inc.)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except that, so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(2a) each Subsidiary may make Restricted Payments to the Reporting Company, any Subsidiary of the Reporting Company that is Guarantor and any other Person that owns a direct Equity 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) the Leverage Ratio Reporting Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(determined on c) the Reporting Company and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(d) [reserved];
(e) the Reporting Company may make cashless repurchases of capital stock of the Reporting Company deemed to occur upon the exercise of options, warrants or similar rights solely to the extent that shares of such capital stock represent a pro forma basis portion of the exercise price of such options, warrants or similar rights;
(f) the Reporting Company may make repurchases of capital stock of the Reporting Company deemed to occur upon the payment by the Reporting Company of employee tax liabilities arising from stock issued pursuant to stock option or other equity-based incentive plans or other benefit plans approved by the Company’s board of directors (or substantially equivalent governing body) for management or employees of the Company and the Subsidiaries;
(g) the Reporting Company may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of the Reporting Company;
(h) the Reporting Company and each Subsidiary may make Restricted Payments to repurchase, retire or otherwise acquire the Equity Interests of the Reporting Company from directors, officers, employees or members of management consultants or independent contractors (or their estate, family members, spouse and/or former spouse) of the Reporting Company or any Subsidiary not in excess of $5,000,000 during each fiscal year of the Reporting Company if immediately before and after giving effect to such transaction) is greater than 2.00 to 1.00, Restricted Payments no such dividends Default or other distributions Event of Default shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsexist;
(bi) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower Reporting Company and its Subsidiaries may make Restricted Payments in connection with or pursuant the Acquisitions in accordance with the terms of the Scheme of Arrangement as in effect on the Restatement Date;
(j) Restricted Payments by the Reporting Company and its Subsidiaries not otherwise permitted under this Section 7.06 in an aggregate amount not to any exceed the sum of its (i) Employee Benefits Plans or $100,000,000 (less the amount of payments made in connection with the employment, termination or compensation reliance on clause (d) of its service providers, employees, officers or directors, Section 7.14) and (ii) to repurchase Equity Securities if the Consolidated Net Leverage Ratio determined on a Pro Forma Basis as of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as last day of the fiscal quarter of the Company most recently ended for which financial statements have been delivered under Section 6.01 is less than 3.50 to 1.00, the Available ECF Amount, if immediately preceding the date before and after giving effect to such Restricted Payments no Default or Event of determinationDefault shall exist; and
(k) other Restricted Payments if immediately before and after giving effect to such Restricted Payments (i) no Default or Event of Default shall exist and (ii) when combined with the amount Consolidated Net Leverage Ratio as of all purchases the last day of Equity Securities made the fiscal quarter of the Company most recently ended for which financial statements have been delivered under Section 7.06(e)6.01 would be less than 3.00 to 1.00, the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerdetermined on a Pro Forma Basis.
Appears in 1 contract
Sources: Credit Agreement (Arris Group Inc)
Restricted Payments. Make Declare or pay any dividend (other than dividends payable solely in common stock or similar equity interests or options or other rights to acquire such equity 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 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 any Group Member (collectively, “Restricted Payments”), except as followsexcept:
(a) the payment of dividends and distributions within sixty 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 Section 7.6;
(ib) Borrowers any Subsidiary may pay dividends or other distributions payable solely in shares of capital stock of any make Restricted Payments to the Borrower or any other Subsidiary (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);
(c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees consultants or directors of the Borrower and its Subsidiaries and stock purchase plans with employees, officers, consultants or directors;
(iid) a Subsidiary the Borrower may pay cash dividends or other distributions to any Borrower or to another Subsidiaryholders of Permitted Preferred Stock; provided that that, in the total case of all such dividends or other distributions any Restricted Payment made pursuant to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreementclause (d), and provided further that if (1x) a no Default or Event of Default shall have occurred and or be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to any such transactionRestricted Payment and (y) is greater than 2.00 to 1.00, no such dividends or other distributions the Borrower shall be paid by any Guarantor in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorssuch Restricted Payment and the incurrence of any Indebtedness in connection therewith;
(be) any repurchases of equity interests of the Borrower may distribute deemed to occur upon the non-cash exercise of stock options, warrants, stock appreciation rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights planand restricted stock units;
(cf) any the Borrower may make Restricted Payments with any cash proceeds contributed to its common equity and from the Net Cash Proceeds of any permitted equity issuance, so long as, with respect to any such Restricted Payments, no Event of Default shall have occurred or be continuing after giving effect to any such Restricted Payment;
(g) the Borrower may repurchase, retire or otherwise acquire stock appreciation rights, restricted stock units or other equity securities of the Borrower from directors, officers or employees of the Borrower or any Subsidiary Guarantor (or their estate, family members, spouse and/or former spouse);
(h) the Borrower or any Subsidiary Guarantor may honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with or pursuant to any of such conversion and may make payments on convertible Indebtedness in accordance with its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligationsterms; and Adesto Technologies Corporation Credit Agreementand
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid Borrower may make other Restricted Payments not otherwise permitted by this Section so long as (x) no Default or distributed in Event of Default shall have occurred or be continuing after giving effect to any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; such Restricted Payment and (iiy) when combined the Borrower shall be in pro forma compliance with the amount of all purchases of Equity Securities made under covenants set forth in Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, 7.1 (provided that the provisions of this clause (fBorrower’s Consolidated Leverage Ratio shall be at least 0.25 less than the applicable level set forth in Section 7.1(a), shall not restrict any Subsidiary from declaring or paying dividends ) after giving effect to any Borrower or to such Restricted Payment and the incurrence of any wholly owned Subsidiary of BorrowerIndebtedness in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Gartner Inc)
Restricted Payments. Make any Restricted Payments, except as follows:
(a) Declare or pay any dividends (i) Borrowers may pay other than dividends or other distributions payable solely in shares of capital stock of stock) or make any Borrower other distribution or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends payment in respect of its Equity Securities or redeem, retire or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that any capital stock (other than (i) the declaration or payment of dividends to a Loan Party, (ii) so long as no Event of Default or event that with the passage of time would result in an Event of Default exists or would result therefrom, the declaration or payment of any dividends solely in the form of equity securities, (iii) with respect to the Borrower, repurchases pursuant to the terms of employee stock purchase plans, employee restricted stock agreements, stockholder rights plans, director or consultant stock option plans, or similar plans, provided such repurchases do not exceed One Million Dollars ($1,000,000) in the aggregate amount paid per calendar year and (iv) with respect to the Borrower, repurchases of stocks and warrants under any repurchase agreements or distributed in any period repurchase programs existing as of four consecutive quarters the Effective Date; provided that repurchases of stock or warrants do not exceed Twenty Five Million Dollars (excluding any amounts covered by subsection $25,000,000)); (b) above) does not exceed 5% Purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of Consolidated Tangible Net Worth as determined as any Subordinated Debt other than pursuant to terms of the fiscal quarter immediately preceding subordination agreement governing such Subordinated Debt; or (c) Be a party to or bound by an agreement (other than the date of determination; and (iiLoan Documents) when combined with that restricts a Subsidiary from paying dividends or distributions to a Loan Party. Notwithstanding the amount of all purchases of Equity Securities made under foregoing, this Section 7.06(e), the total of all such dividends, purchases or redemptions 7.7 shall not exceed in any manner prohibit or restrict (x) the sum Borrower from granting stock options, restricted stock, restricted stock units and other incentive awards (or from the redemption, retirement, purchase or cashless exercise of $100,000 the same) to employees, officers, non-employee directors and consultants pursuant to an equity incentive plan adopted by the Borrower’s board of directors or (y) Subsidiaries that are not Loan Parties from making payments to other Subsidiaries that are not Loan Parties on account of services rendered in the aggregate over the life ordinary course of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerbusiness.
Appears in 1 contract
Sources: Loan and Security Agreement (Global Eagle Entertainment Inc.)
Restricted Payments. Make Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted PaymentsPayment; provided, except that, so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreementit is permitted by law, and provided further that if (1) a and, so long as no Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause would result therefrom,
(a) shall not restrict dividends or other Borrower may declare and pay distributions from Subsidiaries which to the holders of its Equity Interests so long as the Restricted Payment Conditions are not Guarantors satisfied and Administrative Borrower has delivered a certificate to other Subsidiaries which are not Guarantors;Agent prior to the payment of any such distribution certifying satisfaction of the Restricted Payment Conditions,
(b) any Borrower may distribute rights pursuant Loan Parties shall be permitted to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms make payments of such shareholder rights plan;principal and interest on Permitted Intercompany Advances,
(c) Borrower shall be permitted to pay Gestofi S.A. fees and expenses in an aggregate amount not greater than US$300,000 for each calendar year for services provided to Borrower by employees of Gestofi S.A., as well as the amounts permitted to be paid pursuant to the Management Subordination Agreement, provided that no Default or Event of Default shall have occurred and be continuing at the time of such payment or would result therefrom,
(d) Borrower shall be permitted to, without duplication, (i) pay to any of Regaluxe S.r.L., Montrovest or Gestofi S.A., an aggregate amount not to exceed US$300,000 in any Fiscal Year (or such greater amount to the extent consented to in writing by the Agent in its sole discretion) for expenses incurred by any of Regaluxe S.r.L., Montrovest or Gestofi S.A. on behalf of (a) the Chairman of the Board of Directors of the Borrower may make Restricted Payments in connection with or pursuant carrying out his duties as Chairman of the Board of Directors of the Borrower in the ordinary course of business and (b) the Chairman of the Executive Committee of the Borrower in connection with carrying out his duties as Chairman of the Executive Committee of the Borrower in the ordinary course of business, (ii) pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇, an aggregate amount not to exceed €225,000 in any calendar year for carrying out his duties as Chairman of its the Board of Directors of the Borrower plus, an aggregate amount not to exceed EUR€60,000 in any calendar year for carrying out his duties as Chairman of the Executive Committee of the Borrower and (iiii) Employee Benefits Plans or (x) pay Regaluxe S.r.L. a fee of not more than 3.5% of the total price of the goods sold to Regaluxe S.r.L. in the form of a discount (which fee shall be payable to cover import duties and the carrying costs of value-added Taxes financing), and (y) reimburse Regaluxe S.r.L. for other reasonable costs and expenses incurred by Regaluxe S.r.L. in connection with the employmentimportation by Regaluxe S.r.L. of goods of the Borrower and the subsequent sale of such goods by Regaluxe S.r.L. to certain Italian jewelry stores (so long as, termination to the extent requested by the Agent, the Agent is provided with satisfactory documentation supporting such fees, costs and expenses), provided that in each case, no Default or compensation Event of its service providersDefault shall have occurred and be continuing at the time of such payment or would result therefrom, employeesand
(e) Borrower shall be permitted to pay Carlo Coda Nunziante (i) up to an amount not greater than EUR€150,000 in the aggregate per annum on account of consulting services provided to the Borrower, officers or directors, and (ii) to repurchase Equity Securities reimbursement of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 expenses in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; connection therewith and (iiiii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 applicable taxes payable by Borrower in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerconnection therewith.
Appears in 1 contract
Sources: Credit Agreement (Birks Group Inc.)
Restricted Payments. Make Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentsPayment (including pursuant to any Synthetic Purchase Agreement), except as followsor incur any obligation (contingent (unless the contingency is the repayment of the Obligations or receipt of consent from the requisite Lenders under this Agreement) or otherwise) to do so; provided, however, that the following Restricted Payments shall be permitted:
(a) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders;
(b) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, Holdings may (and Polypore may make distributions to Holdings to enable Holdings to repurchase or make distributions to Parent to enable it to) repurchase Capital Stock of Holdings or Parent owned by employees of Holdings or Parent, Polypore or the Subsidiaries or make payments to employees of Holdings or Parent, Polypore or the Subsidiaries upon termination of employment of such employees (including as a result of retirement or severance) in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $5,000,000 in any fiscal year (it being agreed that (i) Borrowers any amount not utilized in any fiscal year may be carried forward and utilized in any subsequent fiscal year, (ii) such amount shall be increased by the amount of cash proceeds received by Holdings from the sale of Capital Stock of Holdings or Parent to such employees after the Restatement Effective Date to the extent such proceeds are contributed directly or indirectly to Polypore as common equity and (iii) any proceeds of key man life insurance actually received by Polypore or Holdings may be used or distributed by Polypore or Holdings for purposes of such repurchases without regard to such amount); provided, that after consummation of the Merger, all references in this clause (b) to the Parent or Holdings shall be deemed to be references to Polypore;
(c) prior to consummation of the Merger, Polypore and Holdings may make Restricted Payments to Holdings and/or Parent (x) the proceeds of which shall be applied by Holdings and/or the Parent (A) to pay its franchise taxes and other fees required to maintain its corporate existence and (B) to pay out of pocket general corporate and overhead expenses incurred by Holdings and/or the Parent not to exceed in the case of this clause (B) (together with the total amount of Investments made for such purpose under Section 6.4(j)) $5,000,000 during any fiscal year of Polypore and (y) in the form of Tax Payments, to the extent directly attributable to (or arising as a result of) the operations of Polypore and the Subsidiaries; provided, however, that (A) the amount of such dividends or other distributions payable solely (together with loans and advances made pursuant to Section 6.4(j) for the purpose of funding Tax Payments) shall not exceed the amount that Polypore and the Subsidiaries would be required to pay in shares respect of capital stock Federal, State and local taxes were Polypore and the Subsidiaries to pay such taxes as stand-alone taxpayers, (B) all Restricted Payments made to Holdings and/or Parent pursuant to this clause (c) are used by Holdings and/or Parent for the purposes specified herein within 20 days of the receipt thereof and (C) in the case of any Borrower Restricted Payment made to Holdings pursuant to this clause (c), Holdings owns, beneficially and of record, 100% of the issued and outstanding Capital Stock of Polypore at the time of such Restricted Payment;
(d) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or notice of such redemption if the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration or notice;
(e) any Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Capital Stock of Polypore (other than Capital Stock issued or sold to a Subsidiary of Polypore or an employee stock ownership plan or to a trust established by Polypore or any Subsidiary for the benefit of their respective employees) or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiarysubstantially concurrent cash capital contribution received by Polypore from its shareholders; provided provided, however, that the total net cash proceeds from such sale or such cash capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that Available Amount;
(f) if (1) a no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (2) other than Disqualified Capital Stock), issued after the Leverage Ratio (determined Restatement Effective Date; provided that, at the time of the declaration of such dividend, Polypore, after giving effect to the payment of such dividend on a pro forma basis after giving effect basis, would have had a Consolidated Fixed Charge Coverage Ratio of at least 2.0 to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors1.0;
(bg) any Borrower may distribute rights pursuant payments to a shareholder rights plan Holdings for the purpose of permitting, and in an amount equal to the amount required to permit, Holdings to redeem or redeem such rightsrepurchase Holdings’ common equity or options in respect thereof, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or each case in connection with the employmentrepurchase provisions of employee stock option or stock purchase agreements or other agreements to compensate management employees or upon the death, disability, retirement, severance or termination of employment of management employees; provided that all such redemptions or compensation repurchases pursuant to this clause (g) shall not exceed in any fiscal year the sum of its service providers, employees, officers or directors, and (i) $5,000,000 plus (ii) to repurchase Equity Securities of a Borrower any amounts not utilized in any preceding fiscal year following the Restatement Effective Date that were otherwise available under this clause for such purchases (which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered shall be increased by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases any net cash proceeds received from the sale since the Restatement Effective Date of Equity Securities made under Section 7.06(e), Capital Stock (other than Disqualified Capital Stock) to members of Polypore’s management team that have not otherwise been applied to the total payment of all such dividends, purchases Restricted Payments through application of the Available Amount or redemptions shall not exceed the sum of $100,000 in the aggregate over the life clause (e) of this AgreementSection 6.6 and by the cash proceeds of any “key-man” life insurance policies which are used to make such redemptions or repurchases); provided, further, that the provisions cancellation of this clause Indebtedness owing to Polypore from members of management of Polypore or any Subsidiary in connection with any repurchase of Capital Stock of Holdings (for warrants or options or rights to acquire such Capital Stock) will not be deemed to constitute a Restricted Payment;
(h) repurchases of Capital Stock deemed to occur upon the exercise of stock options, warrants or other convertible securities if such Capital Stock represents a portion of the exercise price thereof;
(i) payments of dividends on Disqualified Capital Stock issued in compliance with Section 6.1 hereof;
(j) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Polypore’s Common Stock (or, prior to the Merger, dividends, distributions or advances to Holdings or the Parent to allow the Parent to pay dividends on its Common Stock), shall not restrict any Subsidiary from declaring or paying dividends of up to any Borrower or 6% per annum of the Net Cash Proceeds received by the Parent in the Public Equity Offering; and
(k) in addition to any wholly owned Subsidiary of Borrowerthe foregoing Restricted Payments, Polypore (and, prior to the Merger, Holdings) may make additional Restricted Payments using the Available Amount.
Appears in 1 contract
Sources: Credit Agreement (Polypore, Inc.)
Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (including contingent or otherwise) to do so (other than those permitted under Section 7.03(d) or Section 7.04(d)) except that so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of no Default shall have occurred and be continuing at the time of any action described below or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause would result therefrom:
(a) shall not restrict dividends each Subsidiary (which for this purpose includes any trust or trusts formed for the purposes of issuing trust preferred securities) may make Restricted Payments to the Borrower and any other distributions from Subsidiaries Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which are not Guarantors to other Subsidiaries which are not Guarantorssuch Restricted Payment is being made;
(b) any the Borrower and each Subsidiary may distribute rights pursuant to a shareholder rights plan declare and make dividend payments or redeem such rights, provided that such redemption is other distributions payable in accordance with the terms common stock or other common Equity Interests of such shareholder rights planPerson;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of new shares of its common stock or other common Equity Interests (other than proceeds received from any substantially concurrent sale of Warrants);
(d) the Borrower may declare and pay or make dividends (including cash dividends), stock repurchases and distributions;
(e) the Borrower and any Subsidiary may make any payment (even if such payment is in the form of a Restricted Payments in connection Payment) to the Borrower or another Subsidiary that is required to be made with or pursuant respect to any of its (i) Employee Benefits Plans or in connection with the employmentterms of any Tax sharing, termination Tax allocation or compensation of other similar Tax arrangement or agreement entered into among the Borrower and its service providers, employees, officers or directors, Subsidiaries;
(f) the Borrower may enter into any Call Options and (ii) Warrants and may make any payment in connection with entry by the Borrower into any Call Options; provided that any other Restricted Payment to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant be made in connection with any Call Options and Warrants may only be made to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, the extent otherwise permitted by this Section 7.05 at the time such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementPayment is made;
(dg) the Borrower may make any Subsidiary payment in Equity Interests of the Borrower in settlement of any Warrant or in satisfaction of any obligation of the Borrower in connection with the termination, cancellation or early unwind of any Warrant; and
(h) the Borrower may declare or pay make any ratable dividends other payment in respect satisfaction of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as obligation of the fiscal quarter immediately preceding Borrower in connection with the date termination, cancellation or early unwind of determination; and (ii) when combined with any Warrant, but only to the extent that the amount of all purchases such payment is less than or equal to the amount of Equity Securities made under Section 7.06(e)any substantially concurrent payment or payments received by the Borrower in connection with the termination, the total cancellation or early unwind of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerCall Option.
Appears in 1 contract
Sources: Credit Agreement (Tower Group, Inc.)
Restricted Payments. Make The Parent Borrower will not, nor will the Parent Borrower permit any of its Restricted Subsidiaries to, make any Restricted PaymentsPayment, except as followsexcept:
(a) the Parent Borrower or any of its Restricted Subsidiaries may declare and pay or make Capital Distributions that are (i) Borrowers may pay dividends or other distributions payable solely in additional shares of capital its common stock or Qualified Equity (or warrants, options or other rights to acquire additional shares of any Borrower its common stock or any Subsidiary or Qualified Equity) and (ii) deemed to occur upon the exercise of stock options or warrants if such Capital Distribution represents a Subsidiary may pay dividends portion of the exercise price of such options or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorswarrants;
(b) any Restricted Subsidiary of the Parent Borrower may distribute rights pursuant declare and pay or make Capital Distributions to the Parent Borrower or any other Restricted Subsidiary, as applicable (provided, in the case of a shareholder rights plan or redeem such rightsCapital Distribution by a non-wholly owned Restricted Subsidiary of the Parent Borrower, provided that such redemption is in accordance with the terms Capital Distributions shall be made to each owner of Capital Stock of such shareholder rights planRestricted Subsidiary based on their relative ownership interests);
(c) any the Parent Borrower may make Restricted Payments Capital Distributions in connection with or pursuant to the amount required for any Parent Entity (including, without limitation, any of its members or other owners) (i) Employee Benefits Plans to pay franchise taxes necessary to maintain the corporate existence of such Parent Entity, as applicable, (ii) to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity issuance or offering or debt issuance, incurrence or offering, disposition or acquisition, Investment or other transaction permitted by this Agreement, in each case to the extent relating to the Parent Borrower and its Restricted Subsidiaries, (iii) to pay customary salary, bonus and other benefits payable to officers, employees and consultants of any Parent Entity to the extent such salaries, bonuses and other benefits are attributable solely to the ownership or operation of the Parent Borrower and its Restricted Subsidiaries, including the Parent Entity’s proportionate share of such amounts relating to such parent entity being a public company and (iv) that are necessary to consummate the Transactions or the proceeds of which shall be distributed in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementTransactions;
(d) the Parent Borrower may make Capital Distributions in the amount required for any Parent Entity to (A) pay federal, state, provincial, territorial, local and foreign income Taxes of a consolidated, combined or similar income tax group (a “Tax Group”) of which the applicable Parent Entity is the common parent, with respect to any taxable year (or portion thereof) ending after the ThirdFifth Amendment Effective Date or any taxable year (or portion thereof) that is the subject of any audit adjustment after the ThirdFifth Amendment Effective Date (to the extent of any Taxes attributable to such audit adjustments) with respect to which the Parent Borrower and/or any Subsidiary is a member of any such Tax Group, that are attributable to the taxable income of the Parent Borrower may declare or pay any ratable dividends and/or its applicable Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) such taxable period in the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum amount of $100,000 in such Taxes that the aggregate over the life of this AgreementParent Borrower and/or its applicable Subsidiaries would have been required to pay as if such entity or entities had been a stand-alone Tax Group for all relevant taxable periods; provided, further, that the permitted payment pursuant to this clause (A) with respect to any Taxes of an Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Parent Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes, (B) effect the repurchase, redemption, acquisition, cancellation or other retirement for value of the Capital Stock of any Parent Entity or its Restricted Subsidiaries or to effect the termination of options to purchase Capital Stock of the Parent Borrower (or any Parent Entity), in each instance, held by any former or current directors, officers, consultants, managers and employees (or their estates, spouses or former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Parent Borrower (or any Parent Entity) or its Restricted Subsidiaries, (C) make Capital Distributions in the ordinary course pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent Borrower and its Restricted Subsidiaries and (D) pay withholding Taxes of such directors, officers, consultants, managers and employees (or their estates, spouses or former spouses, successors, executors, administrators, heirs, legatees or distributees) in connection with any repurchase of Capital Stock deemed to occur upon the exercise of stock options, warrants, stock appreciation rights or the vesting of restricted stock or stock units; provided that the aggregate amount of all cash paid pursuant to clauses (B) and (D) above in any fiscal year does not exceed the sum of (i) $10,000,00030,000,000, plus (ii) all Net Cash Proceeds obtained by the Parent Borrower during such fiscal year from the sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such fiscal year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of subclauses (B), (C) and (D) of the second proviso of this Section 7.05(d) (before giving effect to any carry forward) may be carried forward to the immediately succeeding fiscal year (but not any other fiscal year) and utilized to make payments pursuant to this Section 7.05(d) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year);
(e) the Parent Borrower may make Restricted Payments, or may make Restricted Payments to any Parent Entity to allow such entity to make payments, that the Parent Borrower would be permitted to make under Section 7.08(f) or (g);
(f) (i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in an aggregate amount not to exceed the greater of (A) $10,000,00025,000,000 and (B) 10.00% of Consolidated EBITDA (calculated on a Pro Forma Basis) as of the last day of the most recently ended Testing Period on or prior to the date of determination in the aggregate in any calendar year (it being understood that any unused amounts in any calendar year (including, for the avoidance of doubt, the period from the ThirdFifth Amendment Effective Date to the end of the first calendar year thereafter) (before giving effect to any carry-over from the prior year) may be carried over to the immediately succeeding calendar year (but not any other calendar year); provided that the carried-over amounts shall not exceed the amount of Restricted Payments permitted to be made in the applicable calendar year (without giving effect to any carried-over amounts from the immediately preceding calendar year)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in aggregate amount not exceed the Available Amount at such time; provided that Restricted Payments made pursuant to this clause (f)(ii) with the portion of the Available Amount not constituting the Available Amount Equity Component shall only be permitted if, after giving Pro Forma Effect to such Restricted Payment, the Total Net Leverage Ratio shall be less than 2.75 to 1.00;
(g) the Parent Borrower may (or may make Restricted Payments to allow any Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any Restricted Payment, split or combination thereof or any Permitted Acquisition or other Investment permitted by this Agreement 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;
(i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in respect of prepayments, repurchases, redemptions or defeasances of any Junior Indebtedness, in each case, prior to the stated maturity thereof (it being understood that scheduled payments or mandatory prepayments shall be permitted to the extent permitted by the applicable Junior Debt Documents and this Agreement (other than this clause (h))), in an aggregate amount not exceeding $15,000,000, (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any Restricted Subsidiary may make Restricted Payments in respect of prepayments, repurchases, redemptions or defeasances of any Junior Indebtedness prior to the stated maturity thereof (it being understood that scheduled payments or mandatory prepayments shall be permitted to the extent permitted by the applicable Junior Debt Documents and this Agreement (other than this clause (h))), in an amount not exceed the Available Amount at such time; provided that Restricted Payments made pursuant to this clause (h)(ii) with the portion of the Available Amount not constituting the Available Amount Equity Component shall only be permitted if, after giving Pro Forma Effect to such Restricted Payment, the Total Net Leverage Ratio shall be less than 2.75 to 1.00, (iii) the Parent Borrower or any Restricted Subsidiary may make Restricted Payments to prepay, repurchase, redeem or defease Junior Indebtedness with the proceeds of any Permitted Refinancing Indebtedness in respect of such Junior Indebtedness and (iv) the Parent Borrower or any Restricted Subsidiary may make Restricted Payments by converting or exchanging any such Indebtedness to Capital Stock (other than Disqualified Equity Interests) of the Parent Borrower or any of its Parent Entities or other Indebtedness permitted under Section 7.03;
(i) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.01 (other than clause (c)(ii) thereof) and Section 7.04, and the Parent Borrower or any Restricted Subsidiary may make any Restricted Payment to a Parent Entity, the Parent Borrower or any Restricted Subsidiary, as the case may be, as and when necessary to enable the Parent Entity, the Parent Borrower or any Restricted Subsidiary to effect such Restricted Payments;
(j) the payment of dividends and distributions within sixty (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 clause Section 7.06;
(f)k) so long as no Event of Default has occurred and is continuing or would result therefrom, Restricted Payments if, immediately after giving Pro Forma Effect to such Restricted Payment, the Total Net Leverage Ratio shall not restrict be less than 1.50 to 1.00; and
(a) the redemption, repurchase, retirement or other acquisition of any Subsidiary from declaring Capital Stock (“Treasury Capital Stock”) of any Credit Party, in exchange for, or paying out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Capital Stock of the Parent Borrower (in each case, other than any Disqualified Equity Interests) (“Refunding Capital Stock”) and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted hereunder, the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Capital Stock of any Parent Entity of the Parent Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement. Notwithstanding the foregoing and for the avoidance of doubt, nothing in this Section 7.05 shall prohibit (i) the repayment or prepayment of intercompany subordinated Indebtedness owed among the Parent Borrower and/or the Subsidiaries, in each case, to the extent otherwise permitted under Section 7.04 or (ii) substantially concurrent transfers of credit positions in connection with intercompany debt restructurings so long as such Indebtedness is permitted by Section 7.03 after giving effect to any wholly owned Subsidiary of Borrowersuch transfer.
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Restricted Payments. Make Declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except as followsthat:
(a) (i) Borrowers each Subsidiary may pay dividends make Restricted Payments to any Loan Party and (ii) each Subsidiary that is not a Loan Party may make Restricted Payments to each other Subsidiary that is not a Loan Party;
(b) the Borrower may make (i) any payment of cash in lieu of a fractional share in accordance with the terms of any indenture (or equivalent agreement) governing Permitted Note Indebtedness and (ii) subject to any subordination provisions applicable thereto, regularly scheduled interest payments (including any additional and/or special interest) and normal course fee payments as and when due in accordance with the terms of any indenture (or equivalent agreement) governing Permitted Note Indebtedness;
(c) the Borrower may declare and make dividend payments or other distributions payable solely in shares its Qualified Capital Stock;
(i) the Borrower may purchase any Permitted Equity Derivatives contemporaneously with and in connection with the issuance of capital Permitted Note Indebtedness and (ii) in connection with the maturity of, or any conversion, redemption or repurchase of Permitted Note Indebtedness, the Borrower may settle, terminate or unwind any Permitted Equity Derivatives;
(e) the Borrower may purchase, redeem or otherwise acquire its Qualified Capital Stock with Qualified Equity Issuance Proceeds received from the substantially concurrent issuance of its Qualified Capital Stock;
(f) the Borrower and any Subsidiary may (i) make repurchases or redemptions of its Equity Interests (x) in connection with the exercise of stock options or restricted stock awards if such Equity Interests represent all or a portion of any the exercise price thereof or (y) deemed to occur upon the withholding of a portion of such Equity Interests issued to directors, officers or employees of the Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends under any stock option plan or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights benefit plan or redeem such rightsagreement for directors, provided that such redemption is in accordance with officers and employees of the terms Borrower and its Subsidiaries to cover withholding tax obligations of such shareholder rights plan;
(c) any Borrower may make Restricted Payments Persons in connection with or pursuant to any respect of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, such issuance and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwisemake other Restricted Payments, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed exceeding $1,000,000 2,000,000 in the aggregate at for any time there are Outstanding Obligationsfiscal year, pursuant to and in accordance with stock option plans or other benefit plans or agreements for current or former directors, officers and employees of the Borrower and its Subsidiaries; and Adesto Technologies Corporation Credit Agreementprovided that, upon the occurrence of the Full 2025 Notes Refinancing Date, such amount shall increase to $4,000,000;
(dg) [reserved]; and
(h) so long as no Event of Default exists or would result therefrom, Borrower and its Subsidiaries may make Permitted Tax Distributions. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, (x) for the avoidance of doubt, in no event shall any Loan Party make any Restricted Payment constituting or comprised of, in whole or in part, (A) any Subsidiary of Material Intellectual Property or (B) any Borrower may declare Product or pay any ratable dividends in respect of its Equity Securities Intellectual Property or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, other rights associated with a Product provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e)however, the total of all such dividends, purchases or redemptions Borrower shall not exceed the sum of $100,000 be permitted to exclusively license Material Intellectual Property in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerIP License Jurisdictions.
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Restricted Payments. Make The Parent, OP LLC and the Borrower will not, and will not permit any Restricted PaymentsSubsidiary to, except as followsdeclare or make, directly or indirectly, any Restricted Payment, return any capital or make any distribution of its Property to its Equity Interest holders, except:
(a) (i) Borrowers the Parent and OP LLC may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in additional shares of capital stock of any Borrower or any Subsidiary or its Equity Interests (other than Disqualified Capital Stock),
(ii) a Subsidiary Subsidiaries (other than the General Partner) of the Parent may declare and pay dividends ratably with respect to their Equity Interests,
(iii) the Parent and OP LLC 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,
(iv) the Parent, OP LLC and the Borrower may make payments to former employees in connection with the termination of such former employee’s employment in an aggregate amount not to exceed $250,000 in any calendar year for the purpose of repurchasing Equity Interests in any member of the Parent, OP LLC or the Borrower, as applicable, issued to such former employee pursuant to stock option plans or other benefit plans for management or employees of the Parent and its Subsidiaries,
(v) any Credit Party may pay dividends the purchase price for any Permitted Bond Hedge Transaction(s),
(vi) the Parent may pay cash and/or deliver common stock upon the settlement, termination or redemption of any Permitted Warrant Transaction(s),
(vii) the Parent may pay cash and/or deliver common stock in satisfaction of the Parent’s obligations in respect of the Convertible Notes whether upon conversion of such securities, upon the occurrence of a change of control (or similar event, however so defined by the terms of such securities) or other distributions customary mandatory prepayment or redemption event permitted by Section 9.04(b)(i), upon repurchase of such securities pursuant to a Redemption thereof otherwise permitted by this Agreement or at maturity of such securities,
(viii) the General Partner may declare and make Restricted Payments to any other Credit Party,
(ix) so long as no Event of Default or Borrowing Base Deficiency has occurred and is continuing, the General Partner may declare and make Restricted Payments in cash (A) ratably with respect to all of its Equity Interests (inclusive of the Class A Units (as defined in the General Partners LLC Agreement) and the Class B Units and (B) to former employees of the Parent and its Subsidiaries in connection with the termination of such former employee’s employment in an aggregate amount not to exceed $1,500,000 in any calendar year for the purpose of repurchasing outstanding Class B Units issued to such employee, so long as any Class B Units remain outstanding,
(x) commencing on the Test Period ending September 30, 2021, each of the Parent, OP LLC and the Borrower or shall be permitted to another Subsidiary; make other Restricted Payments provided that (A) no Event of Default is continuing or would result therefrom, (B) the pro forma Leverage Ratio after giving effect thereto for the most recent Test Period is less than 2.0 to 1.0, (C) the pro forma Available Commitment after giving effect thereto is not less than 25% of the total Commitments then in effect, and (D) if the pro forma Leverage Ratio after giving effect thereto for the most recent Test Period exceeds 1.5 to 1.0, the amount of all such dividends or other distributions Restricted Payments made since the Effective Date pursuant to Subsidiaries which are not Guarantors this clause (x) shall not exceed $300,000 over the life amount of this Agreement, and provided further that if positive Free Cash Flow (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis including after giving effect to such transaction) is greater than 2.00 any other Restricted Payments pursuant to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights x), Investments pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(cSection 9.05(l) any Borrower may make Restricted Payments in connection with or and Capital Expenditures pursuant to any of its (iSection 9.22(a) Employee Benefits Plans or in connection with made since the employment, termination or compensation of its service providers, employees, officers or directors, Effective Date and (ii) prior to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with determination that would otherwise reduce the amount of all purchases of Equity Securities made under Section 7.06(eFree Cash Flow), and
(xi) Restricted Payments pursuant to the total of all such dividends, purchases or redemptions shall not exceed Transactions substantially concurrently with the sum of $100,000 Effective Date as set forth in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerPrepackaged Plan.
Appears in 1 contract
Restricted Payments. Make any Restricted Payments, except as follows:
(a) (i) Borrowers Borrower may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 15,000,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 3.50:1.00 (based upon the Indebtedness existing as of the date thereof and the Consolidated EBITDA reflected on the most recent Compliance Certificate delivered to 1.00Administrative Agent pursuant to Section 6.02), no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors;
(d) subject to Section 2.04(b)(iv), during any period when no Default or Event of Default has occurred and (ii) to repurchase is continuing, Borrower may make Restricted Payments with the Net Proceeds received from a substantially concurrent issuance of Equity Securities of a or capital stock or with its Equity Securities or capital stock or Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, may convert any Equity Securities in accordance with their terms into other Equity Securities; provided, however, that with respect to (c)(ii) above, the cash amount of any such Restricted Payments Payment shall be limited to the amount of cash Net Proceeds received from the concurrent issuance of Equity Securities or capital stock;
(e) Borrower may purchase Equity Securities of the Borrower pursuant to one or more stock repurchase programs, provided that (i) no Default or Event of Default shall have occurred and be continuing, (ii) after giving effect to any such repurchases Borrower shall be in compliance with Section 7.11; and (iii) when combined with the amount of all dividends, purchases or redemptions made under Section 7.06(f), the total of all such purchases of Equity Securities shall not exceed the sum of $1,000,000 10,000,000 in the aggregate at any time there are Outstanding Obligationsover the life of this Agreement; and Adesto Technologies Corporation Credit Agreementand
(df) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or Quantum Corporation Credit Agreement make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 5,000,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 1 contract
Sources: Credit Agreement (Quantum Corp /De/)
Restricted Payments. Make Declare or make any Restricted PaymentsPayment, except as followsthat:
(a) each Subsidiary may make Restricted Payments to the Borrowers, the Guarantors or any Subsidiary of the Borrowers and any other Person that owns an Equity Interest in such Subsidiary, ratably, in the case of such other Persons that are not Borrowers or Subsidiaries, according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; and each Borrower may make Restricted Payments to any other Borrower or any Subsidiary that owns an Equity Interest in such Borrower;
(b) the Borrowers and each Subsidiary may declare and make dividend payments or other distributions to the extent paid or payable solely in the common stock or other common Equity Interests of such Person; provided that the limitations set forth in this clause (b) shall not prohibit the making of cash payments in connection with any dividend or other distribution paid or payable in common stock or other common Equity Interests of such Person so long as such cash payment is not otherwise prohibited by the terms of the Loan Documents;
(c) the Borrowers and each Subsidiary may purchase, redeem or otherwise acquire any Equity Interests of the Borrowers or any Subsidiary; provided, that, at the time or as a result thereof there shall exist no Default or Event of Default. Notwithstanding the foregoing, in no event may the Commitment be used to fund the purchase, redemption or other acquisition of REIT common stock, except to the limited extent that if Net Disposition Proceeds which otherwise would be permitted to be used to purchase, redeem or otherwise acquire such common stock and are designated to be so used but for an interim period are instead used to pay down the Revolving Loans, then an equal amount of the Commitment may be borrowed (in accordance with this Agreement) to purchase, redeem or otherwise acquire such common stock for a period ending 60 days after such repayment; and
(d) the Borrowers and each Subsidiary may declare or make dividends and distributions (excluding those dividends and distributions otherwise permitted under this Section 7.06) in an aggregate amount that do not exceed the greater of (i) during any four consecutive fiscal quarter period for which financials are available, 95% of Funds From Operations for such four consecutive fiscal quarter period, and (ii) with respect to any tax year of the REIT, such amount as may be necessary for (i) the REIT, REIT Sub 1, REIT Sub 2 or Subsidiary REIT I or (ii) following an election to be taxed as a REIT, AIMCO/Bethesda, in each case, to maintain REIT Status for such tax year; provided that, notwithstanding the foregoing, the Borrowers may pay dividends also make Restricted Payments (so long as no Default exists or other would arise as a result of such Restricted Payment) in an amount equal to the amount that would need to be distributed to all of the Borrowers’ partners or shareholders in order for (i) the REIT, REIT Sub 1, REIT Sub 2 or Subsidiary REIT I or (ii) following an election to be taxed as a REIT, AIMCO/Bethesda, in each case, to make the minimum distributions payable solely required to be distributed to its respective shareholders under the Code (A) to avoid the payment of taxes imposed under Code Section 857(b)(1) and 4981 of the Code or analogous provisions of state law, and (B) to avoid the payment of taxes imposed under Section 857(b)(3) of the Code or analogous provisions of state law. Nothing in shares Sections 7.06 shall prohibit (A) Restricted Payments by the Borrowers of capital stock any of their respective Subsidiaries necessary to consummate the Spin-Off Transaction in all material respects in a manner consistent with (or as expressly contemplated in) the Spin-Off Transaction Documents and as described in the REIT’s Form 10-12B filed with the SEC on November 24, 2020, as amended prior to the date hereof, (B) any Borrower or any Subsidiary of any Borrower from making tender offers for or otherwise acquiring for value any Equity Interests, now or hereafter outstanding, of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders which were not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered issued by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any acquiring Borrower or Subsidiary or (C) any Restricted Payment by any Person pursuant to such Person’s Organization Documents, including any wholly owned Subsidiary Restricted Payment funded with proceeds from Dispositions of Borrowerassets.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Aimco Properties L.P.)
Restricted Payments. Make Not, and not permit any Subsidiary to, (i) declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or equity securities on account of any of its Equity Interests, (ii) purchase, redeem or otherwise acquire for value any of its Equity Interests or any warrants, rights or options to acquire with respect thereto, whether now or hereafter outstanding, or (iii) make any earn-out or similar payment (each a “Restricted Payments, except as followsPayment”); provided that:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends declare and make dividend payments or other distributions to any the Borrower or to another Subsidiarya wholly owned Subsidiary of the Borrower; provided that any Subsidiary that is a Loan Party may only declare and make dividend payments and other distributions to another Loan Party;
(b) the Borrower may make Permitted Tax Sharing Payments to the Parent;
(c) the Borrower may (i) make corporate overhead payments to the Parent in an amount not to exceed $.025 per gallon of stated production capacity, where stated production capacity shall equal the maximum production allowed by regulation in any Fiscal Year and (ii) the reimbursement to the Parent for any payment made by the Parent for the purchase of goods or services on behalf of the Borrower in the normal course of business and allocated to the Borrower on either a direct or pro-rata basis where such amounts allocated to the Borrower are solely for the benefit of the Borrower and no other entity so long as the terms of purchase for the cost of the goods or services being reimbursed are on terms no less favorable to the Parent than terms that could have been obtained from a non-Affiliate; provided that in each case under clause (i) or (ii), no Event of Default or Unmatured Event of Default has occurred and is continuing or would exist after making such payment; and
(d) the Borrower may make Restricted Payments to the Parent (i) on or before June 30, 2014 to release earnings and excess working capital with respect to the Subsidiary Guarantors that own the Ethanol Plants and (ii) after making the Restricted Payments described in clause (i), in a total amount after the Effective Date not to exceed the total of (x) the Borrower’s cumulative Excess Cash Flow since the Effective Date plus (y) the amount of all Specified Equity Contributions, minus (z) cumulative mandatory prepayments pursuant to Section 6.2.3(a); provided that, in each case under clause (i) or (ii), (A) after giving effect to any such dividends or other distributions Restricted Payment, the pro forma Total Leverage Ratio is not greater than 3.00 to Subsidiaries which are not Guarantors shall not exceed 1.00 and the Borrower has a pro forma cash balance of at least $300,000 over 15,000,000 and (B) at the life time of this Agreementand after giving effect to any such Restricted Payment, no default under Debt of the Parent in excess of $25,000,000 in the aggregate and provided further that if (1) a no Unmatured Event of Default or Event of Default shall have has occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreementcontinuing; provided, further, that the provisions of this with respect to clause (fii), the amount of any Restricted Payment made after the Effective Date shall not restrict any Subsidiary be deemed to be paid first out of the amount available from declaring or paying dividends Specified Equity Contributions pursuant to any Borrower or clause (y), if any, in the order in which such Specified Equity Contributions were made, and second, out of the amount available from the Borrower’s cumulative retained share of Excess Cash Flow pursuant to any wholly owned Subsidiary of Borrowerclause (x).
Appears in 1 contract
Restricted Payments. Make DeclareWith respect to the Company and its Subsidiaries, declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any of their respective Equity Interests, except as follows:
that: (a) each Subsidiary of the Company (iother than Scripps, for so long as it is not a Subsidiary of the Company (without giving effect to clause (y) Borrowers of the final sentence of the definition thereof)) may pay dividends declare and make dividend payments in cash with respect to any class of Equity Interests of such Subsidiary to the then holders of such Equity Interests ratably according to their respective holdings; (b) the Company and each of its Subsidiaries may declare and make dividend payments or other distributions payable solely in shares the common stock or other common Equity Interests of capital stock such Person to the then holders of any Borrower such Equity Interests ratably according to their respective holdings; (c) the Company and Scripps may declare and make dividend payments in cash to the Facility Guarantor (directly or through any Subsidiary of the Facility Guarantor) in an aggregate amount for any period not greater than an amount sufficient to permit the Facility Guarantor to (i) make payments pursuant to and in accordance with stock option plans or other management plans for management or employees of the Facility Guarantor, the Company and its Subsidiaries during such period, (ii) a Subsidiary pay any Taxes of the Facility Guarantor, the Company and its Subsidiaries which are due and payable, (iii) pay customary directors’ fees paid to the members of Facility Guarantor’s board of directors, in their capacity as such, and the reimbursement for necessary and reasonable out-of-pocket expenses of such members in their capacities as such, in each case arising from their direct service as members of such board of directors, (iv) pay ordinary course overhead expenses of the Facility Guarantor (including administrative, legal, accounting and similar expenses payable to third parties), (v) pay customary third party advisor fees and expenses owed by the Facility Guarantor in the ordinary course of its business, (vi) pay customary director and officers insurance premiums owed by the Facility Guarantor with respect to its officers and directors in the ordinary course of its business and (vii) pay customary and reasonable indemnification claims made by directors and officers of the Facility Guarantor; (d) the Company and each of its Subsidiaries may pay dividends or other distributions to any Borrower or to another Subsidiaryissue and sell their respective Equity Interests and may make Restricted Payments not otherwise permitted by this Section 7.06; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a no Designated Default or any other Event of Default shall have occurred then exist and be continuing no Event of Default would result from such issuance and sale or such Restricted Payment, as the case may be, giving Pro Forma Effect to such issuance and sale or such Restricted Payment; (2e) the Leverage Ratio Company may issue and sell (determined on a pro forma basis after giving effect i) its common Equity Interests; provided that no Change of Control would result from such issuance and sale; and (ii) the Company may issue and sell its Equity Interest in connection with grants of such securities and stock options with respect to such transaction) is greater than 2.00 securities pursuant to 1.00employment, no such dividends benefit plans, service and severance arrangements with current and former officers, directors, consultants, advisors and employees of the Company or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantorof the Company, as determined in good faith by the board of directors or senior management of the Company or such Subsidiary, as applicable; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;and 102
(bf) the Company or any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower its Subsidiaries may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employmentScripps Transactions.; provided that, termination notwithstanding the foregoing, on or compensation of its service providersafter the Amendment No. 2 Effective Date, employees, officers or directors, and (ii) the Facility Guarantor shall not make any Restricted Payment in cash unless after giving Pro Forma Effect to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, any such Restricted Payments may not exceed $1,000,000 in Payment and the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e)transactions related thereto, the total of all such dividends, purchases Consolidated Leverage Ratio for the applicable Measurement Period is less than or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends equal to any Borrower or to any wholly owned Subsidiary of Borrower4.50:1.00.
Appears in 1 contract
Sources: Credit Agreement (Discovery, Inc.)
Restricted Payments. Make The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly declare, order, pay, make or set apart any sum for any Restricted PaymentsPayment, except as followsthat:
(a) U.S. Borrower may make payments and distributions (i) to Holdings that are used by Holdings to pay federal and state income taxes (including used by Holdings to compensate a Subsidiary for the use of a tax benefit by the Holdings tax group) then due and owing, franchise taxes and other similar licensing expenses incurred in the ordinary course of business, professional fees, audit expenses and other expenses related to the maintenance of Holdings as a holding company and provide for all other operating costs of Holdings, including, without limitation, in respect of director fees and expenses, administrative, legal and accounting services provided by third parties and other customary out-of-pocket costs and expenses, including all costs and expenses with respect to filings with the SEC or (ii) that U.S. Borrower or Holdings is required to pay pursuant to the terms of the Acquisition Agreement and the Ancillary Agreements (as such term is defined in the Acquisition Agreement), the Management Consulting Agreement (subject to Section 3.8(f)) or applicable law; provided, that such Borrower’s aggregate contribution to taxes as a result of the filing of a consolidated or combined return by Holdings shall not be greater, nor the aggregate receipt of tax benefits less, than they would have been had such Borrower not filed a consolidated or combined return with Holdings;
(i) Wholly-Owned Subsidiaries of a Borrower may make Restricted Payments to such Borrower and/or to the parent company of the respective Subsidiary and (ii) Canadian Subsidiaries of Holdings may make Restricted Payments to Holdings or any of its Domestic Subsidiaries and/or to the direct or indirect parent company of the respective Canadian Subsidiary, including, without limitation, Restricted Payments in the form of promissory notes or other debt obligations with respect to which any Canadian Subsidiary of Holdings is the obligor;
(c) Borrowers may pay dividends make Restricted Payments to Holdings to permit Holdings to repurchase (and Holdings may repurchase) Stock of Holdings owned by employees of Holdings, Borrowers or other distributions payable solely their Subsidiaries whose employment has terminated; provided, that such Restricted Payments shall not exceed $2,500,000 in shares any Fiscal Year plus a carry-forward of capital stock unused amounts from prior years or $12,500,000 in the aggregate; provided further, that such amount in any calendar year and the aggregate amount may be increased by an amount not to exceed the cash proceeds of keyman life insurance policies received by Holdings, any Borrower or any of its Subsidiaries;
(d) Borrowers and Holdings may make Restricted Payments not expressly permitted by clauses (a) through (c) above (“Permitted Distributions”), provided, that at the time of and after giving effect to such Restricted Payment: (i) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Borrowers and Holdings since November 24, 2003 pursuant to this paragraph (d), is less than the sum, without duplication, of $25,000,000, plus up to (1) 50% of the Consolidated Net Income of the U.S. Borrower for the period (taken as one accounting period) from November 24, 2003 to the date on which such Restricted Payment occurs or, if Consolidated Net Income is not reasonably determinable to such date, to the end of the U.S. Borrower’s most recently ended fiscal period for which internal financial statements are available at the time of such Restricted Payment, (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (2) 100% of the aggregate net cash proceeds (including, without limitation or duplication, net of expenses incurred in connection with the Offering), and the fair market value of property other than cash, received by Holdings or the Borrowers since November 24, 2003 as a contribution to its common equity capital or from the issue or sale of Stock of Holdings or the Borrowers or from the issue or sale of debt securities of Holdings or the Borrowers that have been converted into or exchanged for such Stock (other than Stock (or debt securities) sold to a Subsidiary of Holdings), plus (3) the net cash proceeds (net of expenses), and the fair market value of property other than cash, received by any Credit Party from the sale or other disposition (other than to a Credit Party) of any Investment made under Section 3.3(o) since November 24, 2003 and repurchase and redemptions of such Investments by any Person (other than a Credit Party) and repayments of loans or advances that constituted such an Investment by any Person (other than a Credit Party) less (x) Investments pursuant to Sections 3.3(o), (y) Restricted Payments pursuant to Section 3.5(k), and (z) prepayments or repurchases of Senior Notes or Subordinated Debt pursuant to Section 3.17 (excluding (I) such prepayments or repurchases (including accrued interest, redemption premiums, liquidated damages, and related expenses) funded directly or indirectly with proceeds of the Offering, and (II) purchases, redemptions, defeasements, or prepayments permitted by Section 3.17(ii)), (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors Aggregate Borrowing Availability shall not exceed be no less than $300,000 over the life of this Agreement, 40,000,000 and provided further that if (1iii) a Default or no Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis would result after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsPermitted Distribution;
(be) Any Subsidiary of any Borrower may distribute rights pursuant to Credit Party that is not a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower Wholly-Owned Subsidiary may make Restricted Payments to its shareholders or partners generally, so long as the Borrower or the Subsidiary that owns the equity interest or interests in the Subsidiary making such Restricted Payments receives at least its proportionate share thereof (based upon its relative holdings of equity interest in the Subsidiary making such Restricted Payments and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto);
(f) Borrowers may make a Restricted Payment to Holdings with respect to the first cash interest payment due to holders of the Senior Discount Notes in an aggregate amount not to exceed $8,000,000, which Restricted Payment would reduce the amount available for dividends pursuant to Section 3.5(d);
(g) Holdings may make Restricted Payments prior to the extent it is required to issue cash in lieu of fractional shares to accommodated anti-dilution adjustments made to holders of its Stock;
(h) The Credit Parties may make Restricted Payments to minority shareholders of any Target (as defined in Section 3.6) in connection with or pursuant to any of its a Permitted Acquisition; provided, that such payments are within the limits set forth in Section 3.6(b)(v);
(i) Employee Benefits Plans Holdings may make Restricted Payments prior to the Closing Date consisting solely of proceeds from the issuance of the Senior Discount Notes, on a pro rata basis, to redeem part of the Holdings Series A Redeemable Preferred Stock and to pay a dividend on the common stock of Holdings in an aggregate amount not to exceed $100,000,000;
(j) Holdings may repurchase, prepay or redeem the Holdings Series A Redeemable Preferred Stock as part of the Related Transactions; and
(k) So long as no Event of Default has occurred and is continuing or would be caused thereby and Aggregate Borrowing Availability is no less than $40,000,000 after giving effect hereto, the payment of dividends on any Borrower’s common stock (or dividends, distributions or advances to Holdings to allow Holdings to pay dividends on Holdings’ common stock), following the Offering or the first public offering of any Borrower’s common stock, of (i) in connection with the employmentcase of the Offering, termination up to 7.5% per annum of the amount contributed to the Borrowers by Holdings from the proceeds received by Holdings from the Offering, or compensation of its service providers, employees, officers or directors, and (ii) in the case of the first public offering of common stock of such Borrower, up to repurchase Equity Securities 7.5% per annum of a the net proceeds received by such Borrower which a shareholder is selling whether in such repurchase is pursuant to a repurchase right or otherwisepublic offering, providedother than, howeverin each case, that public offerings with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerStock registered on Form S-8.
Appears in 1 contract
Sources: Credit Agreement (Uap Holding Corp)
Restricted Payments. Make any Restricted Payments, except as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or If any Event of Default shall have has occurred and be continuing or (2) is continuing, the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) Borrower shall not restrict dividends or make, and shall not permit any of its Subsidiary Entities to make any Distributions other distributions from Subsidiaries which are not Guarantors than Distributions to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rightsthe Seller in respect of Permitted Entitlement Payments, provided that such redemption is Permitted Entitlement Payments are then due in accordance with the terms of the Asset Purchase Agreement.
(2) The Borrower shall not make, and shall not permit any of its Subsidiary Entities to make, any other Distributions unless no Event of Default has occurred and is then continuing and such shareholder rights planDistribution consists of one or more of the following:
(i) Such Distribution is to the Seller in respect of Permitted Post Closing Sale Payments, provided that such Permitted Post Closing Sale Payments are then due in accordance with the terms of the Asset Purchase Agreement.
(ii) Permitted Tax Distributions,
(iii) [reserved].
(iv) In the event, as of the end of a calendar quarter, taking into consideration the proposed Distribution, the ratio (expressed as a percentage) of Total Funded Debt to Total Book Capitalization is less than 60% and trailing twelve (12) months EBITDA is $225 million or more (the “Base Distribution Conditions”), Distributions not exceeding $2.5 million in any calendar quarter.
(v) The Permitted Management Fee may be paid to TOUSA Member subject to the following conditions:
(A) The aggregate amount of the fee shall not exceed $5 million with respect to any calendar year;
(cB) any Borrower may make Restricted Payments All such fees shall accrue and shall only be payable on and after the Management Fee Payment Date if such payments will not, on a pro-forma basis, result in connection non-compliance with or pursuant to any of its the covenants in Section 6.9 below; and
(iC) Employee Benefits Plans or in connection with The Permitted Management Fee shall be (and is hereby) fully subordinated to the employmentpayment of the Obligations.
(vi) Distributions to TOUSA Member (through the Upper Tier Companies) as reimbursement for any Permitted Entitlement Cure Payment, termination or compensation provided that each of its service providers, employees, officers or directors, and the following conditions has been satisfied:
(iiA) to repurchase Equity Securities The aggregate amount of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may Distributions does not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement37.5 million;
(dB) any Subsidiary The Distributions shall occur quarterly in three equal installments; and
(C) At the time of any Borrower may declare each such quarterly Distribution the ratio (expressed as a percentage) of Total Funded Debt to Total Book Capitalization is less than 70%, and trailing twelve (12) months EBITDA is $225 million or pay any ratable dividends more.
(vii) Distributions to TOUSA Member (through the Upper Tier Companies) as reimbursement for the Priority Capital Investment provided the following conditions have been satisfied:
(A) the Distributions are made only during the Senior Extension Period (provided all conditions thereto have been satisfied, including those under Section 2.6, and the Facilities have in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that fact been extended);
(iB) the Distributions shall occur quarterly in four equal installments and the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions Distributions shall not exceed the sum Priority Capital Investment;
(C) no interest or preferred return shall have been or shall be paid in respect of $100,000 the Priority Capital Investment prior to the repayment in full of all Obligations (including all outstanding principal and interest); and
(D) at the aggregate over time of each such quarterly redemption no Potential Default or Event of Default then exists and each of the life of this Agreement; provided, further, that the provisions of this clause (f), Base Distribution Conditions shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerhave been satisfied.
Appears in 1 contract
Sources: Junior Mezzanine Credit Agreement (Technical Olympic Usa Inc)
Restricted Payments. Make Holdings will not, and will not permit any Restricted PaymentsSubsidiary to, except as follows:
(a) declare or pay any dividends on any of its Equity Interests (other than dividends payable solely by issuance of its Equity Interests (other than Disqualified Equity Interests) or rights to acquire such Equity Interests), (b) purchase or redeem any such Equity Interests or any warrants, units, options or other rights in respect of such Equity Interests (other than for consideration consisting of Equity Interests having terms not less favorable to the Lenders than the terms of the Equity Interests so purchased or redeemed), (c) make any other distribution to shareholders, (d) prepay, purchase, defease or redeem any Subordinated Debt, 10.75% Notes, Senior Notes, Replacement Senior Notes or any Debt incurred in reliance on clause (b) of Section 6.02 (all of the foregoing Debt described in this clause (d) being “Restricted Debt”), (e) make any payment of principal of or interest on, or acquire, redeem or otherwise retire, or make any other distribution in respect of, any of the QuIPS Debentures or the QuIPS Preferred Securities or (f) set aside funds for any of the foregoing (each of the foregoing events in clauses (a) through (f), a “Restricted Payment”); provided that (i) Borrowers any Subsidiary may declare and pay dividends to Holdings or other distributions payable solely in shares of capital stock of to any Borrower direct or any Subsidiary or indirect wholly owned Subsidiary; (ii) a the U.S. Borrower may declare and pay dividends to Holdings; (iii) any Excluded Subsidiary may declare and pay dividends ratably with respect to its Equity Interests; (iv) the QuIPS Trust may make a distribution of Holdings’s common stock pursuant to the terms of the QuIPS Preferred Securities or the QuIPS Debentures; (v) so long as no Default exists or would result therefrom, Holdings may make payments on the QuIPS Debentures and permit the QuIPS Trust to make corresponding distributions on the QuIPS Preferred Securities in accordance with the terms of the QuIPS Indenture; (vi) so long as (x) no Default exists or would result therefrom and (y) the aggregate amount of all purchases of Equity Interests, warrants or units made by Holdings (or, prior to August 5, 1998, the U.S. Borrower) since October 1, 1997 (excluding purchases permitted by clause (xii) below) does not exceed $12,000,000, Holdings may purchase its common stock or warrants, or units issued in respect thereof, from time to time on terms consistent with those set forth under the heading “Certain Agreements Relating to the Outstanding Securities” in the U.S. Borrower’s Private Placement Memorandum dated September 12, 1997; (vii) so long as no Default exists or would result therefrom, Holdings and any Subsidiary may prepay, purchase, defease or redeem, as applicable, any Restricted Debt with the proceeds of (A) an incurrence of Subordinated Debt permitted by Section 6.02(f), (B) with respect only to Restricted Debt incurred in reliance on Section 6.02(b), an incurrence of unsecured Debt permitted by Section 6.02(b) that has no amortization prior to the date that is six months after the Term Loan Maturity Date, (C) in the case of the 10.75% Notes, Senior Notes and Replacement Senior Notes, an incurrence of Replacement Senior Notes permitted by Section 6.02(o), (D) an issuance of Equity Interests (other distributions than Disqualified Equity Interests) or (E) with respect to the 10.75% Notes, the issuance of the Senior Notes in connection with the Tender Offer, provided that such prepayment, purchase, defeasance or redemption, as the case may be, is consummated within 45 days of such incurrence or issuance, and provided further, that none of the 10.75% Notes shall be purchased pursuant to the Tender Offer unless the requirements of Section 6.15(a) have been satisfied; (viii) the U.S. Borrower may redeem the Senior Notes to the extent required by Section 6.15(b); (ix) Holdings may make Permitted Management Incentive Payments in an aggregate amount not to exceed $10,000,000 during any calendar year; (x) the U.S. Borrower may prepay, purchase, defease or redeem the 10.75% Notes if, at the time of any such prepayment, purchase, defeasance or redemption, the aggregate principal amount of outstanding 10.75% Notes does not exceed $25,000,000; (xi) Holdings and any Subsidiary, as applicable, may make any Exempted Payment; (xii) so long as no Default exists or would result therefrom, Holdings and its Subsidiaries may effect any other Restricted Payment; provided, that, at the time of and after giving effect to any Borrower or to another Subsidiary; provided that such Restricted Payment, the total aggregate amount of all such dividends or other distributions Restricted Payments made pursuant to Subsidiaries which are not Guarantors this clause (xii) on and after the Effective Date, together with aggregate amount of Investments made pursuant to clauses (l) and (q) of Section 6.10, shall not exceed the sum of (A) $300,000 over 200,000,000 plus (B) if the life Funded Debt to Cash Flow Ratio is less than 3.5 to 1.0 as of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio date such Restricted Payment is being made (determined on a pro forma basis after giving effect to such transactionRestricted Payment and any Funded Debt that is incurred on such date), an aggregate amount equal to the sum of 33 1/3% of Consolidated Net Income for each Fiscal Quarter ending on or after June 30, 2004 and prior to the date such Restricted Payment is being made (and for which financial statements are available) for which Consolidated Net Income is greater than 2.00 to 1.00positive; and (xiii) the 9.00% Redemption may be effected in accordance with Section 4.02(c). For the avoidance of doubt, no nothing in this Section 6.04 shall prohibit Holdings from paying cash in lieu of issuing fractional Equity Interests of Holdings in connection with the conversion of Debt into such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is Equity Interests in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments Debt. Nothing in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with this Section 6.04 shall prohibit Holdings from permitting the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary cashless exercise of any Borrower may declare options or pay any ratable dividends in respect warrants for stock of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerHoldings.
Appears in 1 contract
Restricted Payments. Make any Restricted Payments, except as ------------------- ------ follows:
(a) (i) Borrowers the Lessee may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, Lessee and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower Subsidiary of the Lessee may make Restricted Payments to (A) the Lessee or (B) any other Subsidiary of the Lessee (other than Snap Appliances, except that any Subsidiary of Snap Appliances may make Restricted Payments to Snap Appliances);
(ii) the Lessee may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such -------- redemption is in accordance with the terms of such shareholder rights plan;
(ciii) any Borrower the Lessee may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors;
(iv) the Lessee may make Restricted Payments with the Net Security Proceeds received from a substantially concurrent issuance of Equity Securities or capital stock or with its Equity Securities or capital stock or the Lessee may convert any Equity Securities in accordance with their terms into other Equity Securities;
(v) the Lessee may purchase Equity Securities pursuant to one or more stock repurchase programs, provided that (A) no Default or Event of -------- Default shall have occurred and be continuing, and (iiB) after giving effect to repurchase Equity Securities any such repurchases the Lessee shall be in compliance with Section ------- 10.2(e); -------
(vi) the Lessee may, on or before the date twelve months subsequent to the First Amendment Effective Date, dividend or distribute to its shareholders all or substantially all stock of a Borrower which a shareholder is selling whether such repurchase is Snap Appliances held by it pursuant to a repurchase right the Snap Spin-Off, provided there exists no Default or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding ObligationsExist of Default; and Adesto Technologies Corporation Credit Agreementand
(dvii) any Subsidiary of any Borrower the Lessee may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of -------- four consecutive quarters (excluding any amounts covered by subsection clause (bii) ----------- above) does not exceed five percent (5% %) of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 1 contract
Restricted Payments. Make Except for the distribution to Enterprise Products OLLC or its Affiliates of certain proceeds of the initial Loans as provided in Section 5.07(a), the Borrower will not, and will not permit any of its Subsidiaries (other than Project Finance Subsidiaries) to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentsPayment, except as follows:
(a) long as no Event of Default has occurred and is continuing or would result therefrom, (i) Borrowers the Borrower may pay dividends or other distributions payable solely make Restricted Payments from Available Cash (as defined in shares the Partnership Agreement) from Operating Surplus (as defined in the Partnership Agreement) cumulative from January 1, 2007 through the date of capital stock of any Borrower or any Subsidiary or such Restricted Payment, (ii) a the Borrower may make additional Restricted Payments of up to $20,000,000 during the term of this Agreement, (iii) subject to Section 6.09, any Subsidiary may pay dividends buy back any of its own Equity Interests, and (iv) the Borrower and its Subsidiaries may make payments or other distributions to officers, directors or employees with respect to the exercise by any such Persons of options, warrants or other rights to acquire Equity Interests in the Borrower or such Subsidiary issued pursuant to another Subsidiaryan employment, equity award, equity option or equity appreciation agreement or plans entered into by the Borrower or such Subsidiary in the ordinary course of business; provided provided, that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that even if (1) a Default or an Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00continuing, no such Subsidiary shall be prohibited from upstreaming dividends or other distributions shall be paid by any Guarantor payments to the Borrower or any Subsidiary (which is not also a GuarantorProject Finance Subsidiary) or making, in the case of any Subsidiary that is not wholly-owned (directly or indirectly) by the Borrower, dividends or payments, as the case may be, to the other owners of Equity Interests in such Subsidiary; provided, however, that this clause (a) shall not restrict any dividends or other distributions from Subsidiaries which are payments by any such Subsidiary that is not Guarantors wholly-owned (directly or indirectly) by the Borrower to other Subsidiaries which are the Borrower shall be not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect less than an amount equal to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (ix) the aggregate amount paid Borrower’s direct or distributed indirect percentage ownership of Equity Interests in any period of four consecutive quarters such Subsidiary times (excluding any amounts covered by subsection (by) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases such dividends and payments made to all owners of Equity Securities made under Section 7.06(e), the total of all Interests in such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerSubsidiary.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Duncan Energy Partners L.P.)
Restricted Payments. Make The Borrower shall not, nor shall it permit any Subsidiary to, declare or make, directly or indirectly, any Restricted PaymentsPayment, or incur any obligation (contingent or otherwise) to do so, except that, so long as follows:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of no Default shall have occurred and be continuing at the time of any action described below or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause would result therefrom:
(a) shall not restrict dividends or each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other distributions from Subsidiaries Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which are not Guarantors to other Subsidiaries which are not Guarantorssuch Restricted Payment is being made;
(b) any the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the Borrower may distribute rights pursuant to a any existing shareholder rights plan or redeem such rights, provided that such redemption is rights in accordance with the terms of any such existing shareholder rights plan;
(cd) any the Borrower and its Subsidiaries may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans employee benefits plans or in connection with the employment, termination or compensation of its service providers, employees, officers officers, directors or directorsconsultants, including any repurchase or retention of Equity Interests in payment of withholding taxes in connection with equity-based compensation arrangements;
(e) the Borrower may make non-cash repurchases of Equity Interests that are deemed to occur upon exercise of stock options if the proceeds of such repurchases are deemed to represent a portion of the exercise price of such options;
(f) the Borrower may repurchase fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversion of convertible securities;
(g) the Borrower may make any payment at the maturity of, or any payment constituting an Early Retirement of:
(i) its 7.125% Notes due June 1, 2011 or the 4.625% Notes due November 1, 2014 so long as such payment is funded solely from: (a) Qualified Bonds, or (b) from Indebtedness permitted under Section 7.02(c); provided, that the Indebtedness incurred under clauses (a) or (b) above shall have a Stated Maturity of no earlier than July 1, 2016; and
(ii) its Later Maturity Public Indebtedness (excluding its 4.625% Notes due November 1, 2014), so long as such payment is funded solely from (a) Qualified Bonds, or (b) from Indebtedness permitted under Section 7.02(c); provided that any such Indebtedness incurred under clauses (a) or (b) shall have a Stated Maturity of no earlier than July 1, 2016;
(h) the Borrower may (i) declare and pay cash dividends to its stockholders and (ii) purchase, redeem or otherwise acquire for cash Equity Interests issued by it, if after giving effect thereto (A) the aggregate amount of such dividends, purchases, redemptions or acquisitions paid or made after May 20, 2009 under clauses (i) and (ii) would be less than $20,000,000, and (B) if such dividend is declared or such purchase, redemption or acquisition is made at a time when the amount of Consolidated Indebtedness of the Borrower would not cause the Consolidated Total Leverage Ratio to repurchase Equity Securities equal or exceed 3.00 to 1.00 calculated using the Consolidated EBITDA of a the Borrower which a shareholder is selling whether such repurchase is as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit AgreementSection 6.02(a);
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the Borrower may make any payment at the maturity of, or any payment constituting an Early Retirement of, its 7.125% Notes due June 1, 2011, its 15.75% Senior Notes due July 15, 2014, or its 4.625% Notes due November 1, 2014, if after giving effect thereto (A) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; related series after September 15, 2008 would be less than $50,000,000, and (iiB) when combined with the amount of all purchases Consolidated Indebtedness of Equity Securities made the Borrower would not cause the Consolidated Total Leverage Ratio to equal or exceed 4.00 to 1.00 calculated using the Consolidated EBITDA of the Borrower as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a);
(j) the Borrower may make the Other Permitted Payments solely with the Net Cash Proceeds from the issuance of Senior Secured Notes and, thereafter, the Borrower may make the Permitted Post-Tender Payments to the extent permitted hereunder; and
(k) the Borrower may make any payment required under the Senior Secured Notes (or any other Indebtedness permitted under Section 7.06(e7.02(k), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower) upon an asset disposition.
Appears in 1 contract
Sources: Credit Agreement (McClatchy Co)
Restricted Payments. Make 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 PaymentsPayment, except as follows:
(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 declare, make, agree to pay and agree to make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for directors, management, employees or consultants of the Borrower and its Subsidiaries, (d) the Borrower may make Restricted Payments to LMC or its subsidiaries to the extent necessary to pay principal and interest when due in respect of the Indebtedness of LMC and its subsidiaries allocated to the Liberty Media Interactive tracking stock or any comparable successor thereto, provided that after giving pro forma effect to such Restricted Payment, no Default shall have occurred and be continuing, (e) the Borrower may make Restricted Payments to LMC or its subsidiaries to pay any taxes that are due and payable by the Borrower and its Subsidiaries to LMC or its subsidiaries in accordance with the Tax Liability Allocation and Indemnification Agreement between the Borrower and LMC and (f) the Borrower may make Restricted Payments used solely to fund Specified Loan Purchases and “Specified Loan Purchases” under and as defined in the Wachovia Credit Agreement. Notwithstanding the foregoing, the Borrower and its Subsidiaries shall be permitted to declare and make and agree to pay and pay a Restricted Payment, provided that after giving pro forma effect to such Restricted Payment, (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of no Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right the Consolidated Leverage Ratio shall be less than or otherwise, provided, however, that with respect equal to (c)(iix) above3.50 to 1.00 for any Restricted Payment made on or prior to March 30, such 2010, (y) 3.25 to 1.00 for any Restricted Payments may not exceed $1,000,000 in the aggregate at Payment made on or after March 31, 2010 and on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ (▇) 3.00 to 1.00 for any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare Restricted Payment made on or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunderafter March 31, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower2011.
Appears in 1 contract
Restricted Payments. Make Declare or pay any dividend on, or make any payment or other distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any class of Capital Stock of any Credit Party or any Subsidiary thereof, or make any distribution of cash, property or assets to the holders of shares of any Capital Stock of any Credit Party or any Subsidiary thereof (all of the foregoing, the “Restricted Payments, except as follows”) provided that:
(a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any the Borrower or any Subsidiary or (ii) a Subsidiary thereof may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total in shares of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsits own Qualified Capital Stock;
(b) any Subsidiary of the Borrower may distribute rights pursuant pay cash dividends to a shareholder rights plan the Borrower or redeem such rights, provided that such redemption is in accordance with the terms any Subsidiary Guarantor or ratably to all holders of such shareholder rights planits outstanding Qualified Capital Stock;
(ci) any Borrower Non-Guarantor Subsidiaries that are Domestic Subsidiaries may make Restricted Payments in connection with or pursuant to any other Non-Guarantor Subsidiaries that are Domestic Subsidiaries and (ii) Non-Guarantor Subsidiaries that are Foreign Subsidiaries may make Restricted Payments to other Non-Guarantor Subsidiaries that are Foreign Subsidiaries;
(d) the Borrower may declare and make (and each Subsidiary of its the Borrower may declare and make to enable the Borrower to do the same) Restricted Payments to Holdings, so that Holdings may, and Holdings shall be permitted to:
(i) Employee Benefits Plans so long as no Default or Event of Default has occurred and is continuing or would result therefrom, pay any Taxes which are due and payable by the Credit Parties as part of a consolidated group, such Restricted Payment to be limited to the Credit Parties’ pro rata share of such Taxes;
(ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, pay corporate operating (including, without limitation, directors fees and expenses) and overhead expenses (including, without limitation, rent, utilities and salary) in the ordinary course of business and fees and expenses of attorneys, accountants, appraisers and the like, in an aggregate amount for all such operating and overhead expenses and professional fees not to exceed $1,000,000 in any Fiscal Year (the “Overhead and Expense Limitation”) ; provided, however, in the event Borrower and its Subsidiaries do not expend the entire Overhead and Expense Limitation in any fiscal year, Borrower and its Subsidiaries may carry forward to the immediately succeeding fiscal year (but not to subsequent fiscal years) such unutilized portion. All Restricted Payments used to pay any portion of the Overhead and Expense Limitation during any fiscal year shall be applied first to reduce the applicable Overhead and Expense Limitation of such fiscal year and then to reduce the carry-forward from the previous fiscal year, if any; and
(iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, redeem, retire or otherwise acquire shares of its Capital Stock or options or other equity or phantom equity in respect of its Capital Stock from present or former officers, employees, directors or consultants (or their family members or trusts or other entities for the benefit of any of the foregoing) or make severance payments to such Persons in connection with the employmentdeath, disability or termination of employment or compensation consultancy of its service providersany such officer, employeesemployee, officers director or directors, and consultant (iiA) to repurchase Equity Securities the extent that such purchase is made with the Net Cash Proceeds of a Borrower which a shareholder is selling whether such repurchase is pursuant any offering of equity securities of (i) or capital contributions to a repurchase right Holdings or otherwise, provided, however, that with respect (B) otherwise in an aggregate amount not to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement1,000,000;
(de) any Subsidiary of any the Borrower may declare or pay any ratable dividends in respect and make (and each Subsidiary of its Equity Securities or purchase or redeem shares of its Equity Securities or the Borrower may declare and make distributions to shareholders not otherwise permitted hereunder, provided that enable the Borrower to do the same)
(i) the a Restricted Payment to Holdings on or prior to December 6, 2013 in an aggregate amount paid or distributed in any period of four consecutive quarters not to exceed $50,000,000 (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination“Closing Date Dividend”); and (ii) when combined Restricted Payments to Holdings from time to time commencing with the amount of all purchases of Equity Securities made under Section 7.06(e), date occurring one year after the total of all such dividends, purchases or redemptions shall not exceed date the sum of $100,000 in the aggregate over the life of this AgreementClosing Date Dividend is paid; provided, furtherin each case, that (I) the provisions Borrower is able to demonstrate on a Pro Forma Basis that the Borrower remains in compliance with all terms and conditions of this clause the Loan Documents after giving effect to the proposed Restricted Payment; (II) the Borrower is able to demonstrate that the Consolidated Total Funded Leverage Ratio calculated on a Pro Forma Basis (as of the proposed date of the Restricted Payment and after giving effect thereto) shall be no higher than the lower of (A) 3.00 to 1.00 and (B) at least 0.25 below the applicable ratio set forth in Section 9.15(a), (III) after giving effect to the payment of the proposed Restricted Payment, at least $10,000,000 in availability shall exist under the Revolving Credit Facility and (IV) after giving effect to the payment of the proposed Restricted Payment, the Borrower shall have a ratio of Consolidated Current Assets to Consolidated Total Funded Indebtedness of not less than 1.75 to 1.00; and
(f)) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, shall not restrict Holdings may make Restricted Payments with the proceeds of any Subsidiary Restricted Payments received from declaring or paying dividends to any the Borrower or to any wholly owned Subsidiary of Borrowerin compliance with this Section 9.6.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
Restricted Payments. Make Each of the Parent and the Borrower will ------------------- not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries or make any other Restricted PaymentsPayment, except as followsthat:
(a) (i) Borrowers any Subsidiary of the Borrower may pay dividends or other distributions payable solely Dividends to its shareholders, in shares of capital stock of any each case so long as the Borrower or any Subsidiary or of the Borrower which owns an Equity Interest in such Subsidiary receives a percentage of any such Dividends which is at least equal to its percentage Equity Interest in the respective Subsidiary paying the Dividend;
(ii) a any Subsidiary may of the Parent (other than the Borrower and its Subsidiaries) any declare and pay dividends or other make distributions to the Parent or a Wholly-Owned Subsidiary of the Parent;
(iii) the Parent may (x) repurchase the Parent Common Stock and/or options to purchase the Parent Common Stock held by or (y) make payments pursuant to equity appreciation rights agreements to, directors, executive officers, members of management or employees of the Parent or any Borrower of its Subsidiaries upon the death, disability, retirement or to another Subsidiary; provided that the total termination of all such dividends director, executive officers, member of management or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreementemployee, and provided further that if so long as (1A) a no Default or Event of Default shall have occurred then exists or would exist after giving effect thereto and be continuing or (2B) the Leverage Ratio aggregate amount of cash expended by the Parent pursuant to this clause (determined on a pro forma basis iii) shall not exceed $5,000,000 in any Fiscal Year of the Parent plus the net cash proceeds of Parent Common Stock sold to directors, executive officers, members of management or employees of the parent and its Subsidiaries in such fiscal year;
(iv) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Borrower may make Restricted Payments to the Parent, so long as the proceeds thereof are promptly used by the Parent to (x) pay operating expenses (including trade payables) in the ordinary course of business and other similar corporate overhead costs and expenses, (y) pay required fees and expenses in connection with the Transaction and the registration under applicable laws and regulations of its equity securities otherwise permitted hereunder or (z) without duplication of amounts permitted to be dividended pursuant to the proviso to Section 9.05(xiii), make Investments permitted to be made pursuant to Section 9.05(xiii);
(v) the Borrower may make Restricted Payments to the Parent to pay taxes due in the ordinary course of business, provided that (x) any -------- payments made by the Borrower to the Parent for such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries purpose which are not Guarantors promptly used to other Subsidiaries which are not Guarantorspay taxes shall promptly be returned by the Parent to the Borrower and (y) any tax refunds received by the Parent shall promptly be returned by the Parent to the Borrower;
(bvi) any so long as no Default or Event of Default then exists or would exist immediately after giving effect thereto, the Borrower may distribute rights make Restricted Payments to the Parent for the purpose of enabling the Parent to pay the amounts referred to in clause (iii) of this Section 9.03, so long as all proceeds thereof are promptly (and in any event within five Business Days) used by the Parent to pay such amounts;
(vii) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Borrower may make Restricted Payments to the Parent for the sole purpose of enabling the Parent to (x) pay regularly accruing interest with respect to the Existing Convertible Notes or other Indebtedness of the Parent outstanding at such time as permitted pursuant to a shareholder rights plan or redeem such rightsSection 9.04, provided that such redemption is in each case in accordance with the terms of the Existing Convertible Note Indenture or the documentation governing the other such shareholder rights planIndebtedness, or (y) incur Indebtedness relating to a Permitted Existing Convertible Note Refinancing, in each case so long as each such Restricted Payment is promptly (and in any event within two Business Days) used by the Parent for such purpose;
(cviii) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), at any time after the Borrower has received aggregate Net Cash Proceeds (for this purpose, excluding all such Net Cash Proceeds used, or which will be used, or are deemed (as provided in Section 9.12) to have been used, to redeem, repay or repurchase Existing Senior Subordinated Notes as provided in the proviso to clause (iv) of Section 9.12) of at least $250,000,000 from one or more Permitted Subordinated Notes Issuances effected after the Initial Borrowing Date, then the Borrower shall be permitted to make Restricted Payments to the Parent for the sole purpose of enabling the Parent to redeem or repay Existing Convertible Notes at maturity, so long as (x) after giving effect to such payments, the Borrower shall have Available Liquidity of at least $75,000,000 and the Leverage Ratio shall be less than or equal to the Minimum Required Leverage Ratio and (y) each such Restricted Payment shall be promptly (and in any event within one Business Day) used by the Parent for the purpose described above;
(ix) on, or substantially concurrently with, the Initial Borrowing Date the Parent may effect the Initial Stock Repurchases in accordance with the provisions of Section 5.06, and the Borrower shall be permitted to make Restricted Payments to the Parent in the aggregate amount needed by the Parent to effect such Initial Stock Repurchases (so long as all proceeds so paid by the Borrower to the Parent are in fact used for such purpose);
(x) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), to the extent the aggregate cost of all of the Initial Stock Repurchases is less than $500,000,000, an aggregate amount equal to such difference may be used (x) by the Parent to make Stock Repurchases and/or to redeem, repay or repurchase then outstanding Existing Convertible Notes from time to time after the Initial Borrowing Date, and the Borrower may from time to time make Restricted Payments to the Parent for the purpose of enabling the Parent to make such payments, so long as each such Restricted Payment is promptly (and in any event within one Business Day) used by the Parent for such purpose and/or (y) by the Borrower to redeem, repay or repurchase any then outstanding Existing Senior Subordinated Notes; provided that (1) -------- after giving effect to each Restricted Payment and/or each repayment, redemption or repurchase of Existing Senior Subordinated Notes or Existing Convertible Notes made pursuant to this clause (x) the Borrower shall be required to have Available Liquidity of at least $75,000,000 and the Leverage Ratio shall be less than or equal to the Minimum Required Leverage Ratio at such time and (2) in the circumstances, and to the extent, provided in the proviso to clause (x) of the proviso to clause (iv) of Section 9.12, payments originally made pursuant to clause (y) of this Section 9.03(x) may thereafter be deemed not made pursuant to this Section 9.03(x);
(xi) so long as there shall exist no Default or Event of Default (both before and after giving effect to the payment thereof), the Parent may effect Stock Repurchases in addition to those permitted pursuant to preceding clauses (ix) and (x) and the Borrower may make Restricted Payments to the Parent for the purpose of enabling the Parent to make such payments, so long as each such Restricted Payment is promptly (and in connection with or any event within one Business Day) used by the Parent for such purpose; provided that (x) the aggregate cost of all Stock Repurchases effected -------- after the Initial Borrowing Date pursuant to any of its this clause (ixi) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may shall not exceed $1,000,000 in 100,000,000, (y) prior to the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary making of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions Restricted Payments pursuant to shareholders not otherwise permitted hereunder, provided that this clause (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(exi), the total of Borrower shall have received Net Cash Proceeds (for this purpose, excluding all such dividendsNet Cash Proceeds used, purchases or redemptions shall not exceed the sum of $100,000 which will be used, or are deemed (as provided in Section 9.12) to have been used, to redeem, repay or repurchase Existing Senior Subordinated Notes as provided in the aggregate over the life proviso to clause (iv) of this Agreement; provided, further, that the provisions of Section 9.12) aggregating at least $250,000,000 from one or more Permitted Subordinated Notes Issuances and (z) after giving effect to each Restricted Payment pursuant to this clause (f)xi) the Borrower shall have Available Liquidity of at least $75,000,000 and the Leverage Ratio shall be less than or equal to the Minimum Required Leverage Ratio;
(xii) at the time any Permitted Acquisition is effected in accordance with the requirements of Section 9.02(xix) by the Parent or a Wholly-Owned Subsidiary thereof other than the Borrower and its Subsidiaries, then to the extent the Parent or the respective such Wholly- Owned Subsidiary of the Parent has insufficient funds to pay the cash portion of the consideration owing in connection therewith, the Borrower shall not restrict any Subsidiary from declaring or paying be permitted (without duplication) to make Restricted Payments (whether in the form of dividends to any Borrower the Parent or loans or advances) to any wholly owned the Parent and/or Investments pursuant to Section 9.05(viii) in such amounts as may be needed by the Parent or the respective Wholly-Owned Subsidiary of Borrowerthe Parent to pay such cash consideration, so long as all amounts so paid by the Borrower are in fact so used by the Parent or the respective Wholly-Owned Subsidiary of the Parent within five days of the respective payment (or if not so used, are returned to the Borrower at the end of such five day period); and
(xiii) within 90 days after any Permitted Acquisition as described in preceding Section 9.03(xii) is effected, if any Permitted Acquired Debt was assumed in connection therewith or remains in existence after giving effect thereto, then within 90 days after the respective Permitted Acquisition is effected and to the extent the Parent or the respective such Wholly-Owned Subsidiary of the Parent repays such Permitted Acquired Debt within said 90 day period and has insufficient funds to pay same, the Borrower shall be permitted (without duplication) to make Restricted Payments (whether in the form of dividends to the Parent or loans or advances) to the Parent and/or Investments pursuant to Section 9.05(ix) in such amounts as may be needed by the Parent or the respective Wholly-Owned Subsidiary of the Parent to repay such Permitted Acquired Debt, so long as all amounts so paid by the Borrower are in fact so used by the Parent or the respective Wholly-Owned Subsidiary of the Parent within five days of the respective payment (or if not so used, are returned to the Borrower at the end of such five day period).
Appears in 1 contract
Restricted Payments. Make Directly or indirectly through any manner or means nor shall it permit any of its Subsidiaries directly or indirectly through any manner or means, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Payments, Payment except as followsthat:
(a) (i) Borrowers any Subsidiary of the Parent may declare and pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or make other distributions to any Borrower the Parent or to another its other Subsidiaries (and, in the case of a Restricted Payment by a Subsidiary that is not a Wholly-Owned Subsidiary; provided that , to the total Parent and any of all its other Subsidiaries and to each other owner of Equity Interests of such dividends Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) the Spanish Borrower may make regularly scheduled payments of interest in respect of the Senior Notes and the Senior Refinancing Notes in accordance with the terms of, and only to the extent required by the Senior Notes Documents or the Senior Refinancing Notes Documents, as applicable;
(c) the Parent and its Subsidiaries, may (A) make repurchases of the Senior Notes, the Senior Refinancing Notes, or other distributions unsecured Indebtedness of the Parent or its Subsidiaries; provided, that unless the Leverage Ratio (determined for any such period by reference to Subsidiaries which are the most recent Compliance Certificate delivered in accordance with Section 5.01(c) hereof) would not Guarantors be greater than 3.75:1.00 after giving effect to such repurchase, the aggregate amount of payments under this paragraph (c) shall not exceed $300,000 over the life Available Amount; and (B) redeem the Senior Notes in full with the Net Cash Proceeds of the Senior Refinancing Notes;
(d) the Parent may purchase its common stock or common stock options from present or former officers, directors or employees of the Group upon the death, disability or termination of employment of such officer or employee, provided, that unless the Leverage Ratio (determined for any such period by reference to the most recent Compliance Certificate delivered in accordance with Section 5.01(c) hereof) would not be greater than 3.75:1.00 after giving effect to such purchase, the aggregate amount of payments under this Agreement, and provided further that if paragraph (1d) a (net of any proceeds received by the Parent subsequent to the Closing Date in connection with resales of any common stock or common stock options so purchased) shall not exceed the Available Amount;
(e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Parent may declare and pay cash dividends with respect to its common stock (2so long as such declared dividend is actually paid within ninety (90) days of such declaration) (i) so long as the Leverage Ratio Group shall be in compliance with the financial covenant set forth in Section 6.07 (determined whether or not then tested) on a pro forma basis after giving effect to such transactionRestricted Payment as of the last day of the Fiscal Quarter most recently ended, in the ordinary course of business consistent with past practices in an amount not to exceed in respect of any Fiscal Year, 40% of Consolidated Net Income for such Fiscal Year (unless the Parent has provided an irrevocable written notice to the Administrative Agent stating the Parent’s intention not to make any additional dividends with respect to such Fiscal Year, in which case the Parent may not make any further dividends with respect to such Fiscal Year pursuant to this Section 6.04(e)(i)) is greater than 2.00 to 1.00which amounts may be paid in installments, the first, no earlier than December of such dividends Fiscal Year and the last, no later than the following Fiscal Year or other distributions shall be paid (ii) whether or not in the ordinary course so long as after giving effect thereto, the Leverage Ratio (determined for any such period by any Guarantor reference to any Subsidiary which is not also a Guarantor; provided, however, that this clause (athe most recent Compliance Certificate delivered in accordance with Section 5.01(c) hereof) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorsbe greater than 3.75:1.00;
(bf) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower Parent may make Restricted Payments repurchases of Equity Interests deemed to occur upon the exercise of options, warrants, restricted stock units or similar rights if such Equity Interests represents all or a portion of the exercise price thereof or are deemed to occur in connection with the satisfaction of any withholding tax obligation incurred relating to the vesting or exercise of such options, warrants, restricted stock units or similar rights; and
(g) any Restricted Payment pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of BorrowerTransactions.
Appears in 1 contract
Restricted Payments. Make Pay or make, directly or indirectly, any Restricted PaymentsPayment, except as followsprovided that the following shall be permitted:
(a) a Subsidiary of a Subsidiary Guarantor may make Restricted Payments in cash to its direct or indirect parent that is a Subsidiary Guarantor;
(ib) Borrowers each Subsidiary Guarantor and each of its Restricted Subsidiaries may pay dividends declare and make dividend payments or other distributions payable solely in shares additional Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions such Person issued to any Borrower or to another Subsidiaryits direct parent entity; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00thereto, no such dividends the same percentage of the Equity Interests of the Borrower or other distributions shall be paid by any Guarantor to any the respective Restricted Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pledged pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights planCollateral Documents as were so pledged immediately prior thereto;
(c) Permitted Tax Restructurings;
(d) to the extent constituting Restricted Payments, the Subsidiary Guarantors and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04;
(i) the Subsidiary Guarantors may make Restricted Payments to Sabre GLBL (or any of its direct or indirect parents) to the extent allocated pursuant to GAAP or required by GAAP or Law and (ii) the Borrower may make Restricted Payments in connection with to Holdings (or pursuant to any of its direct or indirect parents to the extent allocated pursuant to GAAP or required by GAAP or Law):
(iA) Employee Benefits Plans the proceeds of which shall be used to pay 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, attributable to the ownership or operations of the Borrower and the Subsidiaries;
(B) the proceeds of which shall be used to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; and
(C) the proceeds of which shall be used to pay customary salary and other benefits payable to employees and managers (including any independent manager) of Sabre GLBL or Holdings (or any direct or indirect parent company thereof to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Restricted Subsidiaries and the Borrower);
(f) to the extent allocated pursuant to GAAP or required by GAAP or Law, payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any of their respective future, present or former employees, directors, managers or consultants (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of their respective Equity Interests in consideration of such payments including deemed repurchases in connection with the employment, termination or compensation exercise of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreementstock options;
(dg) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that [Reserved];
(h) [Reserved]; and
(i) the aggregate amount paid or distributed Restricted Payments in any period lieu of four consecutive quarters (excluding any amounts covered Investments expressly permitted by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e7.02(d), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 1 contract
Restricted Payments. Make Each Borrower will not, and will not permit any of its Subsidiaries to make any Restricted PaymentsPayment; provided, except that, so long as follows:it is permitted by law and the Governing Documents of such Borrower or its Subsidiaries,
(a) the Borrowers and their respective Subsidiaries may make Restricted Payments to purchase, redeem or otherwise acquire or retire any Equity Interests pursuant to a management or employee benefit plan in an aggregate amount not to exceed the greater of (ix) Borrowers $50,000,000100,000,000 and (y) 0.75% of Consolidated Net Tangible Assets, measured as of the last day of the fiscal quarter ending prior to the date of such Restricted Payment for which financial statements have been delivered to the Agent, per fiscal year,
(b) Parent and each Subsidiary may pay dividends declare and make dividend payments or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or Equity Interests (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;Disqualified Equity Interests),
(c) (i) any Borrower may make Restricted Payments in connection with or pursuant to another Borrower, (ii) any Subsidiary that is not a Borrower may make Restricted Payments to any of Borrower or any Guarantor, (iii) any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary and (iv) any Borrower (other than Parent) or any Subsidiary may make any Restricted Payments to its parent entity (or, if such Subsidiary is a non-wholly owned Subsidiary, to its parent entities on a pro rata basis based on its parents’ relative ownership interests),
(d) [Reserved],
(e) in addition to the foregoing, Parent may make any other Restricted Payments so long as (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, Payment Conditions are satisfied at the time declared and (ii) until such time as such Restricted Payment is made, a Reserve has been established by Agent in an amount equal to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, the Restricted Payment so declared; provided, howeverthat, that so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the foregoing conditions shall not be required to be satisfied with respect to (c)(ii) above, such Restricted Payments may not exceed in an aggregate principal amount of up to the greater of (x) $1,000,000 in the aggregate at any time there are Outstanding Obligations; 50,000,000100,000,000 and Adesto Technologies Corporation Credit Agreement
(dy) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 50.75% of Consolidated Net Tangible Net Worth Assets, measured as determined as of the last day of the fiscal quarter immediately preceding ending prior to the date of determination; such prepayment for which financial statements have been delivered to the Agent, during any fiscal year, and
(f) Parent may make Restricted Payments of the type described in clauses (b) and (c) of the definition thereof so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) when combined with for each of the amount of all purchases of Equity Securities made under Section 7.06(e)30 consecutive days immediately preceding such Restricted Payment, the total of all and both before and after giving effect to such dividendsRestricted Payment, purchases or redemptions shall (A) no Loans are outstanding, and (B) Liquidity is not exceed the sum of less than $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower500,000,000.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
Restricted Payments. Make any Restricted Payments, except as follows:
(a) (i) Borrowers Borrower may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or and (ii) a any Subsidiary of Borrower may pay dividends or other distributions make Restricted Payments to any (A) Borrower or to another Subsidiary; provided (B) any other Subsidiary of Borrower (other than Snap Appliances, except that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors of Snap Appliances may make Restricted Payments to other Subsidiaries which are not GuarantorsSnap Appliances);
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the -------- terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors;
(d) Borrower may make Restricted Payments with the Net Proceeds received from a substantially concurrent issuance of Equity Securities or capital stock or with its Equity Securities or capital stock or Borrower may convert any Equity Securities in accordance with their terms into other Equity Securities;
(e) Borrower may purchase Equity Securities pursuant to one or more stock repurchase programs, provided that (i) no Default or Event of Default shall have -------- occurred and be continuing, and (ii) after giving effect to repurchase Equity Securities any such repurchases Borrower shall be in compliance with Section 7.12; ------------
(f) Borrower may, on or before the date twelve months subsequent to the Restatement Date, dividend or distribute to its shareholders all or substantially all stock of a Borrower which a shareholder is selling whether such repurchase is Snap Appliances held by it pursuant to a repurchase right the Snap Spin- Off, provided there exists no Default or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding ObligationsExist of Default; and Adesto Technologies Corporation Credit Agreementand
(dg) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) -------- the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
Appears in 1 contract
Sources: Credit Agreement (Quantum Corp /De/)
Restricted Payments. Make Not, and not permit any Restricted Paymentsother Loan Party to, except as follows:
(a) make any dividend or other distribution in cash or property (but not its own capital stock) to any of its equity holders, (b) purchase or redeem any of its equity interests or any warrants, options or other rights in respect thereof (other than redemptions on the Closing Date as set forth in the Purchase Agreement (including Exhibit F thereto)), (c) pay any management fees or similar fees to any of its equity holders or any Affiliate thereof, (d) make any redemption, prepayment (whether mandatory or optional), defeasance, repurchase or any other payment in respect of any Subordinated Debt or (e) set aside funds for any of the foregoing. Notwithstanding the foregoing, (i) Borrowers any Subsidiary may pay dividends or make other distributions payable solely to Borrower or to a domestic Wholly-Owned Subsidiary; (ii) at any time prior to a Holdings Transaction, Borrower may make distributions or advances to Holdings to permit Holdings to pay: (w) federal and state income taxes then due and owing by Holdings or its equity holders (and Holdings may make such tax distributions to its equity holders to pay any such taxes) (A) attributable to the income or operations of Borrower and its Subsidiaries or (B) with respect to roll-over equity as contemplated by the Purchase Agreement not to exceed, with respect to this clause (B), $1,500,000 in shares the aggregate, (x) reasonable fees for audit, legal and similar administrative services not to exceed $200,000 per Fiscal Year, (y) customary fees to non-officer directors of Holdings who are not Affiliates of Holdings and out-of-pocket expenses to directors or observers of the board of directors of Holdings, and (z) payments permitted by clause (vi) of this Section 7.4; (iii) Borrower may make payments to Sponsor with respect to indemnification obligations so long as no Event of Default then exists or would result therefrom; (iv) Holdings or the Borrower may, in respect of management and other advisory services rendered by Manager to Holdings and its Subsidiaries: (x) in the case of an investment in the equity capital of Holdings or an acquisition or divestiture in which Holdings or one or more of its Subsidiaries is a primary party and with respect to which Manager has provided Holdings or one or more of its Subsidiaries advisory services, pay to Manager (or its designee) a transaction advisory fee (an “Advisory Fee”) equal to 0.75% (or less) of the gross amount of such transaction after the consummation of such transaction pursuant to the Management Agreement, provided that (A) such transaction is permitted under this Agreement and (B) at the time such fee is incurred and at the time such fee is paid, no Event of Default has occurred and is continuing (including after giving pro forma effect to such transaction and the payment of such fee), (y) pay to Manager an annual management fee (a “Management Fee”) equal to 0.75% (or less) of the aggregate amount invested in the equity capital of Holdings by Sponsor and its Investment Affiliates, whether directly or through an Affiliate, pursuant to the Management Agreement, provided that at the time any such payment is made, no Event of Default has occurred and is continuing (including after giving pro forma effect to such payment) and (z) reimburse Manager for the reasonable out-of-pocket expenses incurred by it in connection with the performance of such management and advisory services pursuant to the Management Agreement; provided, however, that in the case of clauses (x) and (y) above, (A) the conditions to payment shall not apply if the payment is to be made in the form of equity of Holdings or proceeds of a contemporaneous equity offering or capital contribution, and (B) in the event that any payment is not made because an Event of Default has occurred and is continuing at the time of the scheduled payment thereof, such fees may be paid in full after all existing Events of Default have been cured or waived; (v) Holdings or the Borrower may redeem or repurchase equity of Holdings or the Borrower, respectively, held by former officers, directors, or employees of Holdings or any of its Subsidiaries following the death or disability of such Person, to the extent Holdings or the Borrower has received net cash proceeds from insurance covering the death or disability of such Person in a dollar amount no less than the dollar amount of such redemption or repurchase; (vi) Holdings, Borrower and/or its Subsidiaries may make other payments or advances to allow any Loan Party to repurchase equity from former directors, officers or employees of any Loan Party, their estates, spouses, or former spouses in connection with the termination of such employee’s employment (or such director’s directorship) not to exceed $4,000,000 in the aggregate or $1,500,000 to any single such Person, and the Loan Parties may make distributions and advances to their parent companies to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that no Event of Default shall have occurred and be continuing at the time of such distribution (including after giving pro forma effect to such distribution); (vii) any of Holdings, Borrower or Subsidiaries may make repurchases of capital stock of any Loan Party deemed to occur upon the cashless exercise of options or warrants; (viii) in each case to the extent due and payable on a non-accelerated basis and permitted under the applicable subordination provisions thereof, Borrower may make regularly scheduled payments of principal and interest in respect of Subordinated Debt; and (ix) Holdings or any Subsidiary the Borrower may redeem or (ii) repurchase equity of a Subsidiary may pay dividends or other distributions of the Borrower to any Borrower or the extent required pursuant to another Subsidiarythe exercise of a put right by a holder thereof under the agreements listed on Schedule 5.2; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreementprovided, and provided further that if (1) a however, no Default or Event of Default shall have occurred and be continuing at the time of such redemption or repurchase (2) the Leverage Ratio (determined on a including after giving pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends redemption or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(erepurchase), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower.
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Restricted Payments. Make Declare or make any Restricted PaymentsPayment, except as followsthat:
(a) each Subsidiary of Parent may make Restricted Payments to, or on behalf of or for the benefit of, Parent to enable Parent to pay out-of-pocket accounting fees, legal fees and other amounts incurred or owing by Parent in the ordinary course of business pursuant to the Shared Services Agreement;
(b) each Subsidiary of Parent may make Restricted Payments to, or on behalf of or for the benefit of, Parent in respect of (i) Borrowers may pay dividends or other distributions payable solely income Tax liabilities of Parent and its Subsidiaries in shares of capital stock of any Borrower or any Subsidiary or accordance with the Tax Sharing Agreement, (ii) a Subsidiary may value added Tax, franchise Taxes and similar Taxes to enable Parent to pay dividends any such Taxes imposed on Parent on behalf or on account of its Subsidiaries and (iii) without duplication, any non-income Taxes imposed on Parent that are not attributable to assets or Subsidiaries owned by Parent other distributions to any than the Borrower or to another Subsidiaryand its Subsidiaries; provided however that the total sum of all any such dividends or other distributions Restricted Payments made pursuant to Subsidiaries which are not Guarantors clauses (ii) and (iii) of this Section 9.6(b) shall not exceed $300,000 over 1,000,000 for any taxable year of Parent;
(c) so long as (x) at the life time thereof and after giving effect thereto no Event of this AgreementDefault shall have occurred and be continuing, and (y) in the case of a Restricted Payment pursuant to any of clauses (iv) through (vii) below, the Loan Parties shall be in compliance with Sections 9.1 and 9.2 on a Pro Forma Basis after giving effect thereto as of the relevant Measurement Period, each of Holdings and the Borrower may make Restricted Payments in cash to enable Parent and its Subsidiaries to do the following, but in the case of clauses (i), (ii) and (iii), only to the extent such obligations cannot be met with cash flow available to Parent and its Subsidiaries from the Partnership Parks Entities or from Net Cash Flow from Partnership Parks:
(i) to pay obligations of Parent or any of its Subsidiaries under the Partnership Parks Agreements; and
(ii) to purchase limited partnership units under the Partnership Parks Agreements;
(iii) to make Capital Expenditures for the Partnership Parks Entities, provided further that if the making of such Capital Expenditures does not violate Section 9.7;
(iv) to move money to Parent to finance any Investment permitted to be made pursuant to Section 9.8 (other than Section 9.8(e)(i)); provided that (A) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment (or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection therewith) and (B) Parent shall, immediately following the closing or consummation thereof, cause (1) all property acquired (whether assets or equity interests) to be contributed to the Borrower or a Default Loan Party (or a Person that will become a Loan Party upon receipt of such contribution) or (2) the merger (to the extent permitted in Section 9.5(a)) of the Person formed or acquired into the Borrower or a Loan Party in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 8.6;
(v) to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of Parent; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 9.6 (as determined in good faith by the board of directors or the managing board, as the case may be, of Parent (or any authorized committee thereof));
(vi) to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement not in excess of $15,000,000 in the aggregate; and
(vii) to pay fees, costs and expenses related to the Transactions and the Related Transactions and in connection with any proposed issuance of unsecured Indebtedness (whether or not successful);
(d) to the extent constituting Restricted Payments, Parent and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 9.5 (other than Section 9.5(c) (other than clauses (iii) or (iv));
(e) so long as (i) at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing and (ii) the Parent Consolidated Leverage Ratio is less than the RP Trigger Ratio after giving Pro Forma Effect to the Restricted Payment as of the relevant Measurement Period, Parent, Holdings and the Borrower may make Restricted Payments in an aggregate amount not exceeding the Available Amount;
(f) Parent and its Subsidiaries may make Restricted Payments in the form of noncash repurchases of Capital Stock of Parent deemed to occur upon the exercise of stock options or warrants if such repurchased Capital Stock represents all or a portion of the exercise price of such options or warrants and cash payments of Taxes in connection therewith and cash payments in lieu of the issuance of fractional shares in connection with the exercise of such stock options or warrants;
(g) Parent and its Subsidiaries may make (i) Restricted Payments of Capital Stock of an Unrestricted Entity, or (2ii) Restricted Payments funded with dividends, sale proceeds or other distributions received from Unrestricted Entities;
(h) Each of Holdings and the Borrower may make Restricted Payments in cash to enable Parent, and Parent may make Restricted Payments from RP Eligible Proceeds in an aggregate amount not to exceed $200,000,000; provided that after giving Pro Forma Effect to (i) each Disposition which is the source of such RP Eligible Proceeds and (ii) the corresponding Restricted Payment, the Parent Consolidated Leverage Ratio is less than the RP Trigger Ratio;
(determined i) Each of Holdings and the Borrower may make Restricted Payments in cash in an aggregate amount not to exceed $25,000,000, to enable Parent to repurchase, retire or acquire for value equity interests of Parent from any future, present or former employee or director (or the estate, family members, spouse, successors, executors, administrator, heirs, legatees or distributees of the foregoing) of Parent or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of Parent or any of its Subsidiaries;
(j) Each of Holdings and the Borrower may make Restricted Payments in cash to enable Parent, and Parent may make Restricted Payments to executives of Parent when restricted Capital Stock of Parent vests (in lieu of payment of income tax by such executives);
(k) so long as at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, Parent, Holdings and the Borrower may make Restricted Payments in an aggregate amount up to $50,000,000 during each fiscal quarter;
(l) so long as (x) no Event of Default has occurred and is continuing and (y) the Loan Parties shall be in compliance with Sections 9.1 and 9.2 on a pro forma basis Pro Forma Basis after giving effect to such transaction) is greater than 2.00 Restricted Payment as of the relevant Measurement Period, Parent may make Restricted Payments in an aggregate amount up to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions Net Cash Flow from Subsidiaries which are not Guarantors to other Subsidiaries which are not GuarantorsPartnership Parks;
(bm) so long as no Event of Default with respect to the payment of principal or interest on any Loan or Reimbursement Obligation under Section 10(a) has occurred and is continuing, Borrower may distribute rights pursuant make Restricted Payments in an amount sufficient for Parent or Holdings to a shareholder rights plan or redeem such rightsmake regularly scheduled payments of interest, provided that such redemption is fees, indemnities and expenses in accordance with the terms of such shareholder rights planthe Senior Notes and any Indebtedness incurred pursuant to Section 9.3(i) and Section 9.3(n) and to make AHYDO catch-up payments in respect of the Senior Notes and any Indebtedness incurred pursuant to Section 9.3(i) and Section 9.3(n);
(cn) so long as (x) at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, and (y) the Loan Parties shall be in compliance with Sections 9.1 and 9.2 on a Pro Forma Basis after giving effect thereto as of the relevant Measurement Period, during the Repurchase Period, Parent, Holdings and Borrower may make additional Restricted Payments in an aggregate amount not to exceed $120,000,000 for the repurchase, redemption or other acquisition or retirement for value of any of their Equity Interests;
(o) so long as at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, Holdings and Borrower may make additional Restricted Payments in an aggregate amount not to exceed $150,000,000 such that Parent and its Subsidiaries may make payments in respect of senior unsecured Indebtedness pursuant to Section 9.9(i);
(p) so long as at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing, each of Holdings and Borrower may make Restricted Payments to Parent to enable Parent to make Restricted Payments in connection with an aggregate amount not to exceed $100,000,000; and
(q) other cash Restricted Payments so long as at the time thereof and after giving effect thereto no Event of Default shall have occurred and be continuing; provided that at the time of making such Restricted Payments, the Senior Secured Leverage Ratio is equal to or pursuant less than 2.25:1.00, after giving Pro Forma Effect to any such Restricted Payments; and
(r) so long as (x) no Event of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, Default has occurred and is continuing and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (iy) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Parent Consolidated Tangible Net Worth as determined Leverage Ratio is less than the RP Trigger Ratio after giving Pro Forma Effect to the Restricted Payment as of the fiscal quarter immediately preceding relevant Measurement Period, Parent may make Restricted Payments in an aggregate amount not exceeding the date Parent Available Amount. Nothing herein shall be deemed to prohibit the payment of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict Restricted Payments by any Subsidiary from declaring to its immediate parent company and each other owner of Capital Stock of such Subsidiary based on their relative ownership interests (provided however that Borrower and its Subsidiaries may not declare or paying dividends make any Restricted Payments to any Borrower Holdings or to any wholly owned Subsidiary of BorrowerParent except as otherwise set forth in this Section 9.6).
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Restricted Payments. Make any Restricted Payments, except as follows:
(a) Each of Parent Guarantor and 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 holders of Equity Interests or make any distribution of its Property to its Equity Interest holders; provided that, (i) Borrowers any Obligor may pay dividends or make Restricted Payments to any other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or Obligor (other than Parent Guarantor), (ii) a Subsidiary Borrower may make Restricted Payments to Parent Guarantor, or may pay dividends or other distributions on behalf of Parent Guarantor, ordinary course expenses of Parent Guarantor related to any Borrower or their respective activities permitted pursuant to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this AgreementSection 9.21 (including, without limitation, fees and provided further that if expenses reasonably necessary for public company reporting, stock exchange compliance, board compensation and capital markets activities, including legal, accounting and tax advisory fees and expenses), (1iii) a Default or so long as no Default, Event of Default or Borrowing Base Deficiency shall have occurred and be continuing or would result therefrom, following the date of the First Scheduled Borrowing Base Redetermination, Borrower may make Restricted Payments to Parent Guarantor, and Parent Guarantor may make pro rata to holders of its Equity Interests, Restricted Payments to its Equity Interest holders if at the time such Restricted Payments are declared or agreed, and at the time such Restricted Payments are paid or made, after giving effect to such payment (2x) the Borrowing Base Utilization Percentage is less than or equal to 80% after giving effect to such Restricted Payments, (y) the pro forma Leverage Ratio is no greater than 2:50 to 1.00, and (determined z) the Borrower and its Consolidated Subsidiaries are in compliance with the financial covenants set forth in Section 9.01 immediately prior to and on a pro forma basis after giving effect to such transactionRestricted Payments, (iv) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any the Parent Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any and Borrower may make Restricted Payments in connection with or pursuant to any and in accordance with stock option plans, other equity compensation plans or other benefit plans for management, employees or other individual service providers of the Obligors, which plans are consistent with those paid by competitors in the market, and have been approved by the Parent Guarantor’s or Borrower’s board of directors, to the extent such Restricted Payments are made in the ordinary course of business, and (v) the Borrower may declare and pay Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock).
(b) So long as no Borrowing Base Deficiency, Default or Event of Default has occurred and is continuing or would result therefrom, the Parent Guarantor may make Restricted Payments to Redeem, acquire, retire or repurchase shares of Equity Interests of the Parent Guarantor held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, estates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributes or immediate family members) of the Parent Guarantor or any Subsidiary upon the death, disability, retirement or termination of employment of such Person or otherwise in accordance with any equity option or equity appreciation rights plan, any management, director and/or employee equity ownership, benefit or incentive plan or agreements or equity holders’ agreement; provided at the time such Restricted Payments are declared or agreed, and at the time such Restricted Payments are paid or made, after giving effect to such payment the Borrowing Base Utilization Percentage is less than or equal to 80% after giving effect to such Restricted Payments.
(c) Notwithstanding anything to the contrary contained in this Section 9.04, for any taxable period in which (i) Employee Benefits Plans an Obligor is treated as a “disregarded entity” for U.S. federal income tax purposes and/or is a member of a consolidated, combined, unitary, affiliated or in connection with similar tax group of which the employment, termination or compensation of its service providers, employees, officers or directors, Parent Guarantor is the common parent (a “Tax Group”) and (ii) to repurchase Equity Securities and no Default or Event of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right Default shall have occurred or otherwise, provided, however, that with respect to (c)(ii) abovebe continuing or result therefrom, such Restricted Payments may not exceed $1,000,000 in Obligor (excluding the aggregate at Parent Guarantor, unless it shall be treated for any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(dtaxable period as a pass-through entity for U.S. federal income tax purposes) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions for such taxable period in an amount not to shareholders not otherwise permitted hereunder, exceed the aggregate Tax liability of such Tax Group for the relevant taxable period; provided that (i) the aggregate amount paid or distributed in any period proceeds of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as such distributions will be used to pay the Tax liability of the fiscal quarter immediately preceding Tax Group directly to the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerrelevant Governmental Authority.
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Restricted Payments. Make Not, and not permit any Restricted Paymentsother Loan Party to, except as follows:
(a) make any dividend or other distribution to any of its equity holders, in their capacity as equity holders, (b) purchase or redeem any of its equity interests or any warrants, options or other rights in respect thereof, (c) pay any management fees or similar fees to any of its equity holders or any Affiliate thereof, (d) make any redemption, prepayment (whether mandatory or optional), defeasance, repurchase or any other payment in respect of any Subordinated Debt or (e) set aside funds for any of the foregoing. Notwithstanding the foregoing,
(i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or make other distributions to any Borrower or to another Subsidiary; provided that the total a Wholly-Owned Domestic Subsidiary of all such dividends or other Borrower;
(ii) Borrower may make distributions to Parent;
(iii) any of Parent, Borrower or Subsidiaries which are may reimburse expenses and pay fees and indemnifications in respect of the services provided by directors;
(iv) Borrower and/or its Subsidiaries may make payments to allow any Loan Party to repurchase equity from former directors, officers or employees of any Loan Party, their estates, spouses, or former spouses in connection with the termination of such employee's employment (or such director's directorship) not Guarantors shall not to exceed $300,000 over 2,000,000 in the life of this Agreementaggregate or $1,000,000 to any single such Person, and provided further the Loan Parties may make distributions to their parent companies to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that if (1) a Default or no Event of Default shall have occurred and be continuing at the time of such distribution;
(v) any of Parent, Borrower or Subsidiaries may make repurchases of capital stock of any Loan Party deemed to occur upon the cashless exercise of options or warrants;
(vi) Borrower may make payments to employees that are stockholders pursuant to the termination provisions of employment agreements;
(vii) Parent may (a) make any dividend or other distribution to any of its equity holders, in their capacity as equity holders, (b) purchase or redeem any of its equity interests or any warrants, options or other rights in respect thereof, (c) make any redemption, prepayment (whether mandatory or optional), defeasance, repurchase or any other payment in respect of any Subordinated Debt, to the extent not otherwise limited by the terms thereof, or (2d) set aside funds for any of the Leverage Ratio foregoing, so long as the Restricted Payment Conditions are satisfied;
(determined viii) Borrower and its Subsidiaries may make payments with respect to (A) Permitted Seller Debt and (B) Subordinated Debt as permitted by the Subordination provisions of such Subordinated Debt;
(ix) Borrower and its Subsidiaries may make scheduled payments with respect to Permitted Earn-Outs so long as no Event of Default exists or would be caused thereby and Borrower is in compliance with the financial covenants set forth in Section 7.14 on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantorpayment; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;and
(bx) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;
(c) any Borrower and Parent may make Restricted Payments in connection with non‑cash distributions or pursuant to any conversions of its (i) Employee Benefits Plans or in connection with the employmentequity, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary form of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerequity issuances.
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Restricted Payments. Make Each Borrower will not, and will not permit any of its Subsidiaries to make any Restricted PaymentsPayment; provided, except that, so long as follows:it is permitted by law and the Governing Documents of such Borrower or its Subsidiaries,
(a) the Borrowers and their respective Subsidiaries may make Restricted Payments to purchase, redeem or otherwise acquire or retire any Equity Interests pursuant to a management or employee benefit plan in an aggregate amount not to exceed the greater of (ix) Borrowers 100,000,000 and (y) 0.75% of Consolidated Net Tangible Assets, measured as of the last day of the fiscal quarter ending prior to the date of such Restricted Payment for which financial statements have been delivered to the Agent, per fiscal year,
(b) Parent and each Subsidiary may pay dividends declare and make dividend payments or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or Equity Interests (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors;
(b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such shareholder rights plan;Disqualified Equity Interests),
(c) (i) any Borrower may make Restricted Payments in connection with or pursuant to another Borrower, (ii) any Subsidiary that is not a Borrower may make Restricted Payments to any of Borrower or any Guarantor, (iii) any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary and (iv) any Borrower (other than Parent) or any Subsidiary may make any Restricted Payments to its parent entity (or, if such Subsidiary is a non-wholly owned Subsidiary, to its parent entities on a pro rata basis based on its parents’ relative ownership interests),
(d) [Reserved],
(e) in addition to the foregoing, Parent may make any other Restricted Payments so long as (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, Payment Conditions are satisfied at the time declared and (ii) until such time as such Restricted Payment is made, a Reserve has been established by Agent in an amount equal to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, the Restricted Payment so declared; provided, howeverthat, that so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the foregoing conditions shall not be required to be satisfied with respect to (c)(ii) above, such Restricted Payments may not exceed in an aggregate principal amount of up to the greater of (x) $1,000,000 in the aggregate at any time there are Outstanding Obligations; 100,000,000 and Adesto Technologies Corporation Credit Agreement
(dy) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 50.75% of Consolidated Net Tangible Net Worth Assets, measured as determined as of the last day of the fiscal quarter immediately preceding ending prior to the date of determination; such prepayment for which financial statements have been delivered to the Agent, during any fiscal year, and
(f) Parent may make Restricted Payments of the type described in clauses (b) and (c) of the definition thereof so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) when combined with for each of the amount of all purchases of Equity Securities made under Section 7.06(e)30 consecutive days immediately preceding such Restricted Payment, the total of all and both before and after giving effect to such dividendsRestricted Payment, purchases or redemptions shall (A) no Loans are outstanding, and (B) Liquidity is not exceed the sum of less than $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrower500,000,000.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Cleveland-Cliffs Inc.)
Restricted Payments. Make No Credit Party shall, directly or indirectly, declare or make any Restricted PaymentsPayment at any time, except as follows:
except, without duplication, (a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or Guarantor may make Restricted Payments to the extent permitted pursuant to Section 2.09(b)(ii), (iib) a Subsidiary any Guarantor of Borrower may pay dividends or other distributions declare and make Restricted Payments to any Borrower or to another Subsidiary; provided that the total of all any other Guarantor, (c) any Guarantor, if such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, and provided further that if (1) a Default or Event of Default shall have occurred and be continuing or (2) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a GuarantorWholly Owned Subsidiary, may declare and make Restricted Payments in respect of its Equity Interests to all holders of such Equity Interests generally so long as Borrower or the Guarantor that owns such Equity Interest or interests in the Person making such Restricted Payments receives at least its proportionate share thereof (based upon its relative ownership of the subject Equity Interests and the terms thereof), (d) Borrower and the Guarantors may engage in transactions to the extent permitted by Section 10.04 and Section 10.05, (e) Borrower and the Guarantors may make Restricted Payments in respect of Disqualified Capital Stock issued in compliance with the terms hereof, (f) Borrower may repurchase (or make Restricted Payments in respect thereof) common stock or common stock options from present or former officers, directors or employees (or heirs of, estates of or trusts formed by such Persons) of Borrower upon the death, disability, retirement or termination of employment of such officer, director or employee or pursuant to the terms of any stock option plan or like agreement; provided, however, that the aggregate amount of payments under this clause (af) shall not restrict dividends exceed $10.0 million in any fiscal year of Borrower, (g) Borrower and the Guarantors may (i) repurchase (or other make Restricted Payments in respect thereof) Equity Interests (including those issued by Borrower) to the extent deemed to occur upon exercise of stock options, warrants or rights in respect thereof to the extent such Equity Interests represent a portion of the exercise price of such options, warrants or rights in respect thereof and (ii) make payments in respect of (or make Restricted Payments in respect thereof) withholding or similar taxes payable or expected to be payable by any present or former member of management, director, officer, employee, or consultant of Borrower or any Guarantor or family members, spouses or former spouses, heirs of, estates of or trusts formed by such Persons in connection with the exercise of stock options or grant, vesting or delivery of Equity Interests, (h) Borrower and the Guarantors may make Restricted Payments to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or, warrants or rights or upon the conversion or exchange of or into Equity Interests, or payments or distributions from Subsidiaries which are to dissenting stockholders pursuant to applicable law, (i) so long as immediately before and after giving effect thereto no Event of Default specified in Section 11.01(b) or 11.01(c) or Event of Default specified in Section 11.01(g) or 11.01(h) with respect to Borrower has occurred and is continuing and the Consolidated Total Leverage Ratio shall not exceed 4.00 to 1.00 on a Pro Forma Basis as of the most recent Calculation Date, Borrower and the Guarantors may make Restricted Payments, (j) to other Subsidiaries which are not Guarantors;
(b) any the extent constituting Restricted Payments, Borrower may distribute rights make payments to counterparties under Swap Contracts entered into in connection with the issuance of convertible or exchangeable debt, (k) Borrower may repurchase its Equity Interests; provided, however, that the aggregate amount of payments under this clause (k) shall not exceed $1.0 billion, (l) Borrower and the Guarantors may make Restricted Payments in an aggregate amount not to exceed $50.0 million minus the aggregate amount of Junior Prepayments made pursuant to a shareholder rights plan or redeem such rightsSection 10.09(j) and the aggregate amount of Investments made (and as calculated) pursuant to Section 10.04(v), provided that such redemption is in accordance with the terms of such shareholder rights plan;
(cm) any Borrower may make Restricted Payments in connection with or pursuant to any respect of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, Interests reflecting ordinary course dividends thereon; provided, however, that with respect to the aggregate amount of payments under this clause (c)(iim) above, such Restricted Payments may shall not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) until the aggregate amount paid or distributed later of (x) the fiscal year in which the ▇▇▇▇ Massachusetts Project Opening Date occurs and (y) the fiscal year commencing January 1, 2020, $500.0 million in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; year and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e)thereafter, the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 750.0 million in the aggregate over the life of this Agreementany fiscal year; provided, furtherfurther however, that the provisions of any such amount specified in this clause (fm) for any fiscal year, if not utilized for Restricted Payments in the fiscal year for which it is permitted, may be carried over for use in the immediately following two fiscal years and not in any subsequent fiscal year (the “Carryover Amount”), it being understood however that for purposes of determining the foregoing any Restricted Payments made in reliance on this clause (m) in any fiscal year shall first be deemed to have been made with the then applicable Carryover Amount, if any, before application of any amounts otherwise permitted to be used for Restricted Payments in reliance on this clause (m) for such fiscal year, and (n) Borrower and the Guarantors may make Restricted Payments in an aggregate amount not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerexceed the Available Equity Amount.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Restricted Payments. Make JCC Holding will not, and will not permit any of its Subsidiaries to, authorize, declare, pay or make any Restricted Payments, except as followsexcept:
(a) (i) Borrowers any Subsidiary of a Permitted Subsidiary may pay dividends or other distributions payable solely in shares of capital stock of any Borrower Distributions to such Permitted Subsidiary or any Wholly-Owned Subsidiary or of such Permitted Subsidiary;
(ii) a any Permitted Subsidiary other than the Borrower and its Subsidiaries may pay Distributions to JCC Holding;
(iii) from amounts paid as interest hereunder and as Letter of Credit Fees, Credit Support Fees may be paid from time to time as provided in the Credit Enhancement Fee Agreement (Bank Credit Agreement) and the Credit Enhancement Fee Agreement (JCC);
(iv) the Borrower may pay the Additional Credit Support Fees, the Management Fees and other costs and expenses pursuant to the Management Agreement, and Minimum Payment Guaranty Fees, in each case to the extent permitted by Section 9.06(a)(iii), (iv) and (v) and Section 9.06(b);
(v) dividends and distributions by the Borrower to JCC Holding in an amount equal to all Permitted Tax Payments, to the extent all amounts so dividended or distributed pursuant to this clause (v) are promptly (and in any event within two Business Days) used by JCC Holding to make payments in respect of the tax obligations of the type described in the definition of Permitted Tax Payments; provided further that any refund actually received by JCC Holding shall be promptly (in any event within two Business Days) returned to the Borrower (and if not so returned, shall reduce the amount of payments otherwise permitted to be made in the future by the Borrower pursuant to this clause (v));
(vi) dividends and distributions by the Permitted Subsidiaries to JCC Holding to the extent necessary to permit JCC Holding to pay, and so long as JCC Holding promptly (and in any event within five Business Days) uses such dividends and distributions to pay any administrative, overhead or holding company operating expenses incurred in the ordinary course of business, including, without limitation, JCC Holding's reasonable professional fees and expenses in connection with complying with its reporting obligations and obligations to prepare and distribute business records, financial statements or other distributions documents to any Borrower lender or to another Subsidiaryother persons having business dealings with JCC Holding or as may be required by law, JCC Holding's costs and related expenses in connection with computation of federal, state, local or foreign taxes and other governmental charges other than Permitted Tax Payments, indemnification agreements, insurance premiums, surety bonds and insurance brokers' fees, and JCC Holding's expenses for directors', officers' and employees' compensation and benefits, rent, office furnishings, fixtures and equipment and office supplies; provided that the total portion of all such dividends or other and distributions pursuant to this clause (vi) paid by the Borrower and its Subsidiaries which are not Guarantors shall not exceed $300,000 over their ratable share (as determined in good faith by JCC Holding based upon the life costs relating to its various Permitted Subsidiaries or, to the extent not so allocable, based on allocations deemed fair and reasonable by JCC Holding) of this Agreement, and provided further that such amounts;
(vii) payments permitted pursuant to the last sentence of Section 9.11;
(viii) JCC Holding may purchase or redeem outstanding shares of its common stock if (1) a no Default or Event of Default then exists or would result therefrom to the extent necessary in the good faith judgment of the Board of Directors of JCC Holding to prevent the filing of a disciplinary action by the State of Louisiana or the LGCB or to prevent the loss or secure the reinstatement of the Casino Operating Contract; provided that the aggregate amount spent in connection with purchases pursuant to this clause (viii) shall have occurred in no event exceed $5,000,000 and shall only be continuing made from the proceeds of unsecured Indebtedness permitted to be incurred pursuant to Section 9.04(xiv);
(ix) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may make cash interest payments to HET (2or an Affiliate of HET) under the Leverage Ratio Junior Subordinated Credit Facility in the amounts and at the times that such cash interest payments are due and payable pursuant to the terms of the Junior Subordinated Credit Facility;
(determined x) in the circumstances, and to the extent, expressly provided in Section 8.17(c), amounts originally incurred as Completion Loans under the Completion Loan Agreement and/or advanced pursuant to the Completion Guarantees may be returned, from excess funds on a pro forma basis deposit in the Project Account, to the Completion Guarantors; and
(xi) JCC Development may pay rents to the Borrower pursuant to the Second Floor Sublease;
(xii) so long as no Default or Event of Default then exists or would exist after giving effect thereto, payments may be made pursuant to the transactions expressly permitted by clauses (vi) and (vii) of Section 9.06(a), even though such transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) shall not restrict dividends or other distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantorspayments would otherwise constitute Restricted Payments;
(bxiii) payments expressly permitted to be made pursuant to the provisions of Section 8.17(c) may be made in accordance with the terms thereof; and
(xiv) at any time after any payment is made by any Minimum Payment Guarantor pursuant to the terms of a Minimum Payment Guaranty, such payment may be reimbursed to the respective Minimum Payment Guarantor by the Borrower and the Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is pay interest thereon in accordance with the terms of such shareholder rights plan;
(c) any Borrower may make Restricted Payments in connection with or pursuant to any of its (i) Employee Benefits Plans or in connection with the employment, termination or compensation of its service providers, employees, officers or directors, and (ii) to repurchase Equity Securities of a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement
(d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (ii) when combined with the amount of all purchases of Equity Securities made under Section 7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any Subsidiary from declaring or paying dividends to any Borrower or to any wholly owned Subsidiary of Borrowerrelevant Minimum Payment Guaranty Documents.
Appears in 1 contract
Sources: Credit Agreement (JCC Holding Co)