Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and (ii) the Borrower is in compliance with the financial covenants set forth in Sections 6.14 and 6.15.
Appears in 2 contracts
Sources: Credit Agreement (Papa Johns International Inc), Credit Agreement (Papa Johns International Inc)
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and, (d) the Borrower may declare and pay cash dividends with respect to its common Equity Interests in an aggregate amount for any fiscal year of the Borrower not to exceed the lesser of (i) $35,000,000 and (dii) an amount equal to $0.225 per share per fiscal quarter and (e) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and, (ii) the Leverage Ratio is not greater than 3.75 to 1.00 and (iiiii) the Borrower is in compliance with the financial covenants covenantscovenant set forth in Sections 6.14 and andSection 6.15.
Appears in 2 contracts
Sources: Credit Agreement (Papa Johns International Inc), Credit Agreement (Papa Johns International Inc)
Dividends and Related Distributions. Each of the Loan Parties The Company shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund shares of capital stock or similar deposit, partnership interests or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”collectively, "Distributions"), except except:
(ai) the Borrower Company may declare and pay dividends with respect to its Equity Interests payable solely in additional make open market repurchases of shares of its common stock, and it may receive shares of its common stock as payment of the exercise price of options, or as payment of taxes associated with the exercise of options or the vesting of restricted shares, which such delivered shares are deemed to be repurchased by the Company at fair market value (bas defined in the Company's stock option plan) Subsidiaries may declare and pay dividends ratably on the date of delivery to the Company, so long as the aggregate amount paid by the Company 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 and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect all such repurchases (including giving all such deemed repurchases) does not at any time exceed the Repurchase Amount in effect on a pro forma basis) from time to such Restricted Payment (i) time and no Default or Event of Default exists or Potential Default has occurred and is continuing or would result therefrom and therefrom;
(ii) the Borrower Company may engage in stock splits (including reverse stock splits) or pay dividends in stock;
(iii) Wholly-owned Subsidiaries may make Distributions to the Company or another Wholly-owned Subsidiary;
(iv) Subsidiaries other than Wholly-owned Subsidiaries may make Distributions so long as (a) the aggregate amount of Distributions made by any such Subsidiary to any Person other than the Company or a Subsidiary of the Company in any Fiscal Year does not exceed 50% of such Person's pro rata share (based on the percentage of stock or other equity interests owned by such Person) of such Subsidiary's net income for such Fiscal Year as determined in accordance with GAAP and (b) no later than ten (10) days prior to any such Distribution, the Company shall have given written notice to the Lenders and the Agents thereof, together with calculations demonstrating that such Distribution complies with this clause (iv); and
(v) the Company may pay dividends on its preferred stock so long as the dividend rate on such preferred stock (after taking into account all other fees and amounts payable on such preferred stock) is in compliance with less than the financial covenants set forth in Sections 6.14 and 6.15interest rate payable on the Loans.
Appears in 2 contracts
Sources: Multicurrency Revolving Credit Facility (Borders Group Inc), Credit Agreement (Borders Group Inc)
Dividends and Related Distributions. Each of the Loan Parties The Borrowers shall not, and shall not permit any of its their Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund shares of capital stock or similar deposit, partnership or limited liability company interest or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock (or warrants, options or rights therefor) or partnership or limited liability company interests, except
(any of the foregoing being referred to as a “Restricted Payment”), except i) dividends or other distributions payable (a) to the Borrower may declare Borrowers or any other Loan Party by its Subsidiaries (other than, from and pay after the Aerostructures Bankruptcy Effective Date, dividends with respect or distributions payable by any Aerostructures Filing Entity to any Loan Party that is not an Aerostructures Filing Entity), or (b) to a non-Loan Party Subsidiary by another non-Loan Party Subsidiary;
(ii) repurchases by TGI of its Equity Interests common stock and dividends payable solely in additional shares by TGI to the holders of its common stock; provided that after giving effect thereto (a) Availability is not less than $300,000,000.00, and (b) Subsidiaries may declare and pay dividends ratably with respect the Senior Secured Leverage Ratio would not be more than 2.50 to their Equity Interests, 1.00; provided further that (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 and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (ix) no Default or Event of Default (other than any Aerostructures Filing Event of Default) or Potential Default (other than a Potential Default in respect of any Aerostructures Filing Event of Default) exists at the time of any such payment or would will result therefrom from such payment, and (y) no repurchases or dividends shall be permitted pursuant to this clause (ii) during the Borrower Covenant Restriction Period.
(iii) regularly scheduled quarterly dividends on the common stock of TGI, consistent with past practice, not to exceed $0.20 per share per quarter, subject to adjustments for stock splits, reverse stock splits, stock dividends and similar transactions;
(iv) redemptions of any employee’s Capital Stock in TGI upon termination of employment provided that no Event of Default (other than any Aerostructures Filing Event of Default) then exists or will result from such redemption;
(v) repurchases or redemptions of Capital Stock deemed to occur upon the cashless exercise of stock options or warrants or upon the vesting of restricted stock units if such Capital Stock represents the exercise price of such options or warrants or represents withholding taxes due upon such exercise or vesting;
(vi) dividends or other distributions payable in stock, including stock splits; and
(vii) distributions from, or payments by, a Subsidiary to the extent necessary to pay any liability for taxes imposed on any shareholder or equity holder of such Subsidiary or any consolidated, combined, or similar group of which such Subsidiary is in compliance with a member as a result of income earned by such Subsidiary being taxable to such shareholder or equity holder or such group notwithstanding the financial covenants set forth in Sections 6.14 and 6.15absence of any distribution or payment by the Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
Dividends and Related Distributions. Each of the No Loan Parties Party shall, nor shall not, and shall not any Loan Party7.6 permit any of its Subsidiaries to, make declare or paymake, directly or indirectly, any Restricted Payment, or agree to become or remain liable to make or pay, incur any dividend or other distribution of any nature obligation (whether in cash, property, securities contingent or otherwise) on account of to do so, except that: any Loan Party or in respect of its Equity InterestsSubsidiary may make, including any sinking fund declare and pay lawful, cash dividends(a) or similar depositdistributions to, or on account redeem any Equity Interest held by, any Loan Party; any Loan Party may make, declare or pay lawful cash dividends or distributions to(b) the Excluded Subsidiaries in an aggregate amount of up to $10,000,000 over the term of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (Facilities; any Subsidiary of the foregoing being referred to as a “Restricted Payment”), except (aBorrower that is not directly or indirectly wholly-owned by(c) the Borrower may make, declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stocklawful, (b) Subsidiaries may declare pro rata cash dividends, distributions 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 and (d) redemptions; the Borrower and its Subsidiaries may make, declare and pay lawful dividends or(d) distributions to the extent payable in Equity Interests that are not Disqualified Stock; the Borrower may make the Special Dividend; and(e) so long as no Default or Event of Default shall exist at the time of such declaration(f) or could reasonably be expected to result from such dividend, distribution or redemption (tested solely at the time of declaration of any other Restricted Payment (includingsuch dividend, distribution or redemption) and the Loan Parties shall be in compliance with the covenants set forth in Article VIII after giving effect to any such dividend, distribution or redemption on a Pro forma Basis for the avoidance four fiscal quarter period most recently then ended for which financial statements have been delivered (tested solely at the time of doubtdeclaration of any such dividend, distribution or redemption), the Borrower may make, declare and pay lawful cash dividends or distributions to its shareholders or redeem capital stock in an aggregate amount not to exceed, (i) when the Borrower’s Total Net Leverage Ratio is greater than 4.00:1.00 on a Pro forma Basis, an amount equal to the greater of (x) 6.0% of the net cash proceeds from any repurchase public equity issuance of the Borrower’s Equity Interests or (y) 4.0% of the estimated fair market value of the Borrower’s Equity Interests (collectively, the “Permitted Additional Distributions”) or (ii) when the Borrower’s Total Net Leverage is less than or equal to 4.00:1.00 on a Pro forma Basis, an unlimited amount; provided, however, that (x) the amount of any dividend or distribution that is not paid in cash but is reinvested in Equity Interests of the Borrower (other than Disqualified Stock) shall be excluded from this calculation and (y) redemptions of Equity Interests of the Borrower pursuant surrendered by employees and directors to cover withholding taxes shall be excluded from this calculation. Liquidations, Mergers, Consolidations, Acquisitions. No Loan Party shall, nor shall7.7 any Loan Party permit any of its Subsidiaries to, (x) dissolve, liquidate or wind-up its affairs, (y) become a party to any merger or consolidation, or (z) acquire by purchase, lease or otherwise all or substantially all of the Specified Share Repurchase Programassets or Equity Interests of any other Person or group of related Persons; except: [reserved];
(a) so any Subsidiary may combine, merge or consolidate with or into (i) any Loan(b) Party; provided, that a Loan Party (or the Borrower, if the Borrower is a party) shall be the continuing or surviving Person, and (ii) any one or more other Subsidiaries; 108 any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary(c) liquidation or otherwise) to another Subsidiary; provided, that if the transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party; any Subsidiary that is not a Loan Party may dissolve, liquidate or wind-up its(d) affairs, as long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Event of Default would result therefrom and (ii) such Subsidiary dissolves, liquidates or winds-up into another Subsidiary or a Loan Party; any Loan Party may dissolve, liquidate or wind-up its affairs, as long as (i) no(e) Event of Default exists or would result therefrom and (ii) such Loan Party dissolves, liquidates or winds-up into another Loan Party; and any Loan Party and any Subsidiary may enter into any transactions permitted(f) under Section 7.5 or Section 7.8. Any reference in this Section 7.7 or in Section 7.8 to a combination, merger, consolidation, Disposition, dissolution, liquidation or transfer shall be deemed to apply to a Division of or by a limited liability company, or an allocation of assets to a series of limited liability companies (or the Borrower unwinding of such a division or allocation) as if it were a combination, merger, consolidation, Disposition, dissolution, transfer or similar term, as applicable, to of or with a separate Person. Any Division of a limited liability company shall constitute a separate Person hereunder (and each Division of any limited liability company that is a like term shall also constitute such a Person or entity). Dispositions of Assets or Subsidiaries. No Loan Party shall, nor shall any Loan Party7.8 permit any of its Subsidiaries to, Dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other Disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest, partnership interests or limited liability company interests or other Equity Interests of a Subsidiary of such Loan Party), except: transactions involving the sale of inventory to customers in compliance with the financial covenants set forth ordinary course of(a) business; (i) any termination of any lease or sublease in Sections 6.14 the ordinary course of business,(b) (ii) any expiration of any option agreement in respect of real or personal property and 6.15.(iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business; any Disposition of assets by any Loan Party to another Loan Party;(c) any Disposition of Cash Equivalents in the ordinary course of business(d) any Disposition of obsolete or worn-out assets in the ordinary course of business(e) that are no longer necessary or required in the conduct of such Loan Party’s or such Subsidiary’s business; any Disposition (i) permitted by Section 7.7 or (ii) pursuant to a Casualty Event;(f) the Disposition of assets on the Closing Date or any Subsequent Closing (as such(g) term is defined in the T-Mobile Asset Purchase Agreement) pursuant to, and consummation of the transactions contemplated by, the T-Mobile Asset Purchase Agreement and the Disposition of the T-Mobile 109
Appears in 1 contract
Sources: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Dividends and Related Distributions. Each of Neither the Loan Parties shall notBorrower nor any Surety or Consolidated Subsidiary will declare, and shall not permit any of its Subsidiaries tomake, make or pay, or agree to agree, become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund shares of the capital stock of the Borrower or similar deposit, any Surety or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests any shares of the capital stock (or warrants, options or rights thereforfor any shares of the capital stock) of the Borrower or any Surety (the foregoing are herein collectively referred to as "Distributions") without the consent of the Banks; provided, however, that so long as no Event of Default or Potential Default exists or could exist at the time of, after or as a result of any of the foregoing being referred to as a “Restricted Payment”)following Distributions, except (a) the Borrower may declare make Distributions on account of the mandatorily redeemable convertible preferred stock of Borrower in accordance with the terms of the Pen Holdings Charter, provided that any Distributions on account of such mandatorily redeemable convertible preferred stock (i) are only made prior to any conversion of such stock into common stock of Borrower, and pay dividends (ii) are made no earlier than January 3, 2006 and are made in accordance with respect to its Equity Interests payable solely the Pen Holdings Charter as in additional shares of its common stockeffect on the Closing Date, (b) the Subsidiaries of Borrower may declare make Distributions to Borrower in any amount, and pay dividends ratably with respect to their Equity Interests, (c) for the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans purchase, redemption or other benefit plans acquisition for management or employees value of shares of capital stock of the Borrower and its Subsidiaries and or options on such shares held by officers or employees or former officers or employees (d) or their estates or beneficiaries under their estates), other than Will▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇on the Borrower and its Subsidiaries may make any other Restricted Payment (includingdeath, for the avoidance disability, retirement or termination of doubt, any repurchase employment of Equity Interests of the Borrower such current or former officers or employees pursuant to the Specified Share Repurchase Programterms of an employee benefit plan or any other agreement pursuant to which such shares of capital stock or options were issued or pursuant to a severance, buy-sell or right of first refusal agreement with such current or former officer or employee; provided that, without the prior written consent of the Banks, Distributions made pursuant to this clause (c) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment may only be made if (i) no Default or Event of Default exists or would result therefrom the aggregate Distributions made pursuant to this clause (c) do not exceed $3,000,000, and (ii) an Event of Default is not then in existence and the Borrower is shall not be in compliance with violation of the financial covenants set forth contained in Sections 6.14 and 6.15Section 6.16 of this Agreement after giving effect to the making of such Distributions.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties (a) The Company shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of capital stock, including any sinking fund partnership interests or similar deposit, limited liability company interests or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock, partnership interests or limited liability company interests (or warrants, options or rights therefor) (or make any of the foregoing being referred to as a “Restricted Payment”)Management Fee payment, except that:
(a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Programi) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (iA) no Potential Default or Event of Default exists is in existence or would result therefrom and (B) the amount at the time credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such time, the Company may (1) on the Closing Date, make a distribution of $8,500,000 to Parent from the proceeds of the sale of the Notes, (2) upon receipt by the Company of the NRGT Reimbursement in an amount equal to or greater than $1,500,000, make a distribution of $1,500,000 to Parent and (3) during the period of 15 Business Days next following each Payment Date, make a distribution to Parent and make the Management Fee payment payable in respect of the quarterly fiscal period ended on or closest to such Payment Date (including accrued Management Fee payments, if any, for prior quarterly fiscal periods which remain unpaid), in an amount not exceeding, in the aggregate for such distribution and Management Fee payment (including accrued Management Fee payments for prior periods), Excess Cash Flow as of such Payment Date; provided, that the amount of Excess Cash Flow as of each Payment Date, and the amount so distributable pursuant to this sub-clause (2) on the basis of the computation of such Excess Cash Flow, shall be subject to adjustment pursuant to Section 10.5(b); and
(ii) any Subsidiary of the Borrower is Company may make dividends and distributions to the Company or to any other Subsidiary in compliance respect of Equity Interests of such Subsidiary owned by the Company or such other Subsidiary, as the case may be. The Company shall not and shall not permit any of its Subsidiaries to enter into any contract or agreement which restricts in any manner the payment by any Subsidiary of the Company of dividends or distributions to the Company or any other Subsidiary which shall own Equity Interests of such Subsidiary; provided, however, that the Company and TWCC may enter into the NRGT Documents, notwithstanding the potential restrictive effect thereof on the payment of dividends and distributions by TWCC.
(b) The distributions and Management Fee payments made by the Company to the Parent pursuant to sub-clause (i)(2) of Section 10.5(a) from Excess Cash Flow as of each Payment Date in any fiscal year shall be subject to adjustment in accordance with the further provisions of this Section 10.5(b). Following the completion of each fiscal year of the Company, the amount of Excess Cash Flow as of each Payment Date in such fiscal year shall be recalculated based upon the annual audited financial covenants statements of the Obligors for such fiscal year. For this purpose, Available Cash and Excess Cash Flow as of each such Payment Date shall be recomputed in accordance with the definitions of “Available Cash” and “Excess Cash Flow” set forth in Sections 6.14 Schedule B, in each case using the actual numbers for the applicable quarterly period derived from such audited financial statements. Based on such recomputations, as promptly as practicable, but in any event not later than contemporaneously with the Company’s delivery to the holders of the Notes of its audited financial statements for such fiscal year pursuant to Section 7.1(c), the Company shall furnish to each such holder an Officer’s Certificate (which may be combined with the Officer’s Certificate required to be delivered for such fiscal year pursuant to Section 7.1(d)), (i) showing all such recomputations in respect of each fiscal quarter in such fiscal year and 6.15demonstrating the manner in which the same were made, and (ii) setting forth the amount of each adjustment required in accordance with this Section 10.5(b) by reason of such recomputations in the amount of any distribution or Management Fee payment made in such fiscal year. All such adjustments based on audited financial information shall be made as follows:
(A) in the event that the audited financial information demonstrates that Parent received monies in excess of that which it should have received for such annual fiscal period, the Company shall cause an amount equal to such excess monies to be paid by Parent to the Company; provided, however, that if Parent shall not have paid the amount of any such excess monies to the Company in full, the amount of such excess monies (or the portion thereof not so paid) shall be deducted from the amounts which would otherwise be available for distribution to Parent pursuant to this Section 10.5 in succeeding fiscal quarters until the full amount of such unpaid excess monies shall have been so deducted; and
(B) in the event that the audited financial information demonstrates that the Company should have been permitted to make distributions or Management Fee payments exceeding the amounts thereof actually distributed and paid in such fiscal year (the amount of any such excess, the “Underpaid Amount”), then so long as (x) no Potential Default or Event of Default is in existence or would result therefrom and (y) the amount at the time credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such time, the Company may make a further distribution to Parent and/or make a payment in respect of Management Fees, in an amount not exceeding, in the aggregate for such further distribution and payment in respect of Management Fees, the Underpaid Amount. All recomputations and adjustments pursuant to this Section 10.5(b) in respect of any fiscal year shall be made within ten Business Days after the Company’s delivery of its audited financial statements for such fiscal year pursuant to Section 7.1(c).
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of Capital Stock, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of Capital Stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a collectively, “Restricted PaymentPayments”), except (ai) 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 each Subsidiary 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 and Loan Parties, (dii) the Borrower and its Subsidiaries may declare and make any Restricted Payments payable solely in the Capital Stock of such Person, (iii) the Borrower may make other Restricted Payment (including, for the avoidance Payments payable to holders of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) its Capital Stock so long as immediately prior to and after giving effect as, in the case of this clause (including giving effect on a pro forma basis) to such Restricted Payment iii), (iA) no Potential Default or Event of Default has occurred and is continuing or exists after giving effect thereto, (B) the Loan Parties shall be in pro forma compliance with the covenants contained in Section 8.2.14 [Maximum Leverage Ratio] and Section 8.2.15 [Minimum Interest Coverage Ratio] after giving pro forma effect to such Restricted Payments (including any Indebtedness incurred in connection therewith), in each case, calculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered hereunder pursuant to Section 8.3.1 [Quarterly Financial Statements] or would result therefrom 8.3.2 [Annual Financial Statements], and (iiC) in the event such Restricted Payments are (I) more than five percent (5%) greater than the amount of the dividends or distributions made in the prior fiscal year or, (II) in any fiscal year more than $30,000,000, the Borrower shall demonstrate to the Administrative Agent’s satisfaction of the condition set forth in clause (B) above by completing and delivering at least five (5) Business Days prior to such Restricted Payments, a certificate in form and substance satisfactory to the Administrative Agent, such compliance) and (iv) the Borrower is in compliance and its Subsidiaries may pay 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 financial covenants set forth in Sections 6.14 and 6.15other provisions of this Section.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, pay any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of capital stock, including any sinking fund partnership interests or similar deposit, or limited liability company interests on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), partnership interests or limited liability company interests, except (ai) 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 Loan Parties may make Restricted Payments pursuant to and in accordance with stock option plans dividends or other benefit plans for management or employees of the Borrower and its Subsidiaries distributions payable to another Loan Party, and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Programii) so long as immediately no Event of Default or Potential Default shall exist prior to and or after giving effect (including giving effect on to a pro forma basis) repurchase of the Borrower's outstanding capital stock, the Borrower may redeem or repurchase in the market shares of its outstanding capital stock in an amount such that the consideration paid by the Borrower does not exceed $3,000,000 in the aggregate for all such redemptions and repurchases."
4. The Borrower shall pay an amendment fee in the amount of $17,500, to be allocated to the Banks based upon each Bank's Ratable Share, upon execution and delivery of this Amendment to the Agent, which fee shall be deemed to be earned as of the date of this Amendment upon execution of this Amendment by all the parties hereto.
5. The Loan Parties reconfirm and ratify the Agreement and the Loan Documents all in accordance with their respective terms, except to the extent that any of those terms are expressly modified by the provisions of this Amendment, and the Loan Parties confirm that the Agreement and the Loan Documents have at all times since the date of their respective execution and delivery continued in full force and effect.
6. The provisions of this Agreement shall bind the Loan Parties and their respective successors and assigns and are for the benefit of the Agent and the Banks and their respective successors and assigns.
7. The Loan Parties each represent that it has the corporate power and has been duly authorized by all requisite corporate action to execute and deliver this Amendment and to perform its obligations hereunder.
8. The Loan Parties each represent that this Amendment has been duly executed and delivered by such Restricted Payment Loan Party and constitutes the legal, valid and binding obligations of such Loan Party, enforceable against such Loan Party in accordance with its terms, except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforceability of creditors rights generally or by general equitable principles.
9. Neither this Amendment nor the consummation of the transactions contemplated herein nor the performance by the Loan Parties of their respective obligations hereunder or under the Agreement or the Loan Documents will (i) no Default violate any law, rule or Event of Default exists regulation or would result therefrom and court order to which any Loan Party is subject; (ii) conflict with or result in a breach of any Loan Party's certificate of incorporation or bylaws or any material agreement or instrument to which any Loan Party is subject or by which its properties are bound or (iii) result in the Borrower is creation or imposition of any lien, security interest or encumbrance on the property of any Loan Party, whether now owned or hereafter acquired, other than liens in compliance with favor of the financial covenants set forth in Sections 6.14 Agent for the benefit of the Banks.
10. This Amendment may be executed by different parties hereto on any number of separate counterparts, each of which, when so executed and 6.15delivered, shall be an original, and all such counterparts shall together constitute one and the same instrument. [SIGNATURES APPEAR ON THE NEXT PAGE.]
Appears in 1 contract
Sources: Credit Agreement (Grubb & Ellis Co)
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of capital stock, including any sinking fund partnership interests or similar deposit, limited liability company interests or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except partnership interests or limited liability company interests, except
(i) dividends or other distributions payable to another Loan Party (other than the MLP);
(ii) upon ten (10) Business Days prior notice to the Agent, Borrower may transfer equity interests in any Excluded Subsidiary (other than any Subsidiaries of Rhino Energy WV, LLC with regard to which the restrictions in this paragraph shall not apply and whose equity interests may be transferred without regard to the procedures and restrictions below), provided, however, (a) that no uncured Event of Default shall be in existence at the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares time of its common stocksuch transfer, (b) Subsidiaries may declare that at the time of such transfer, the Loan Parties can demonstrate pro forma compliance with the covenants after taking into account such transfer by delivering to the Agent a Compliance Certificate, and pay dividends ratably with respect to their Equity Interests, (c) that the Borrower may make Restricted Payments shall deliver any documentation related to such transfer, which such documentation shall be reasonably satisfactory, in form and substance, to the Agent; and upon such transfer, such Excluded Subsidiary shall cease to be a Loan Party and shall be released as a Guarantor, and the pledge of the equity interest therein and the security interest in after-acquired property of such Excluded Subsidiary shall be released;
(iii) dividends or other distributions payable by the Borrower to the MLP in such amounts as required to pay the general and administrative costs and expenses of the MLP incurred in connection with the operation of its business including, without limitation, amounts payable to the General Partner pursuant to and the terms of the Partnership Agreement that do not constitute distributions on the general partner interest or limited partner interests in accordance with stock option plans the MLP held by the General Partner;
(iv) dividends or other distributions payable by the Borrower to the MLP in such amounts as is required by the MLP to pay dividends or distributions or redeem equity interests, in each case pursuant to incentive compensation and similar benefit plans for provided to the management or and employees of the Borrower MLP and its Subsidiaries and of up to $5,000,000 per annum; and
(d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Programv) so long as immediately prior no Event of Default or Potential Default exists and is continuing or would result therefrom, the MLP and the Borrower may declare, make or incur a liability to make distributions to fund MLP Quarterly Distributions; provided that (A) such MLP Quarterly Distributions are made in accordance with the provisions of the Partnership Agreement and after giving effect (including giving effect on B) the aggregate amount of MLP Quarterly Distributions with respect to any fiscal quarter shall not exceed MLP Available Cash for such fiscal quarter.”
(h) Amendment of Section 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions]. The following sentence shall be added to the end of Section 8.2.6 of the Credit Agreement: “Notwithstanding anything contained herein to the contrary, the MLP shall not be permitted to be a pro forma basis) party to such Restricted Payment any liquidation, merger, and consolidation.”
(i) no Default or Event Amendment of Default exists or would result therefrom and (ii) the Borrower is in compliance with the financial covenants set forth in Sections 6.14 and 6.15.Section 8.2.8
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall ----------------------------------- not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, any shares of the capital stock of the Borrower (including any sinking fund or similar depositthe Preferred Shares and the Common Shares), or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests any shares of the capital stock (or warrants, options or rights therefor) (of the Borrower, nor permit any such action to be taken indirectly by any of the foregoing being referred to as a “Restricted Payment”)its Subsidiaries, except except:
(ai) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, Termination Dividend;
(b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Programii) so long as immediately prior to no Event of Default or Potential Default has occurred and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment is continuing, the Borrower may repurchase not in excess (i) in fiscal year 1996, $24,420,000 of the Unpledged Shares (other than the Restricted Stock); (ii) in fiscal year 1997 and in each fiscal year thereafter during the term of this Agreement, $2,000,000 of the Unpledged Shares (other than the Restricted Stock) and, (iii) during the term of this Agreement, $1,000,000 of Restricted Stock; and at any time, the Borrower may repurchase up to $1,900,000 of the Unpledged Shares held by Mellon Bank, N.A., as trustee of the Westinghouse Electric Corporation Master Trust Agreement for the Westinghouse Pension Plan, or any successor trustee;
(iii) Passport or any other Subsidiary which is less than wholly owned may make distributions as permitted under its organizational documents; and
(iv) during the Borrower's fiscal year 1996 and thereafter, so long as (A) no Default or Event of Default exists or would result therefrom Potential Default has occurred and is continuing, and (iiB) the Borrower is in compliance with Section 8.2(a), in the financial covenants set forth case of both clauses (A) and (B) after giving effect to any such dividend payment, the Borrower may make dividend payments with respect to the Common Shares in Sections 6.14 and 6.15any fiscal year in an amount not to exceed $5,000,000.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Federated Investors Inc /Pa/)
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries Subsidiaries, (d) the Borrower may declare and pay cash dividends with respect to its common Equity Interests in an aggregate amount for any fiscal year of the Borrower not to exceed the lesser of (i) $35,000,000 and (dii) an amount equal to $0.225 per share per fiscal quarter and (e) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom therefrom, (ii) the Leverage Ratio is not greater than 3.75 to 1.00 and (iiiii) the Borrower is in compliance with the financial covenants covenant set forth in Sections 6.14 and Section 6.15.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of equity interests, including any sinking fund partnership interests or similar deposit, or limited liability company interests on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), except:
(i) (Restricted Payments payable by any Subsidiary of the foregoing being referred Borrower to as a “the Borrower;
(ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment”), except ;
(aiii) Restricted Payments payable by the Borrower provided that: (1) the Debt/EBITDA Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as it if it had occurred on the last day of such fiscal quarter, is less than or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and
(iv) Restricted Payments payable by the Borrower may declare to NACCO (i) in respect of the Borrower’s allocable share of NACCO's overhead and pay dividends with respect to its Equity Interests payable solely other selling, general and administrative expenses (including legal, accounting, other professional fees and costs) incurred in additional shares the ordinary course of its common stockbusiness, (bii) Subsidiaries may declare and pay dividends ratably in respect of liabilities of NACCO up to, but not exceeding $5,000,000 for any twelve-month period, arising from, in connection with respect or relating to their Equity Intereststhe closing of certain mining operations of Bellaire Corporation, (ciii) in respect of amounts due to NACCO under the Borrower may make Restricted Payments pursuant to Tax Sharing Agreement and (iv) in accordance with stock option plans or other benefit plans for management or employees respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and (ii) the Borrower is in compliance with the financial covenants set forth in Sections 6.14 and 6.15Subsidiaries.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Intereststheir respective shares of capital stock or partnership interests, including any sinking fund or similar depositas the case may be, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests their respective shares of capital stock (or warrants, options or rights therefor) (any of or partnership interests, as the foregoing being referred to as a “Restricted Payment”)case may be, except (ai) dividends or distributions in respect of a partnership interest payable by any Subsidiary to the Borrower, (ii) dividends payable by the Borrower solely in shares of capital stock of the Borrower, and (iii) up to the Permitted Distribution Amount of distributions per year payable in the aggregate by any Subsidiary of the Borrower which is a limited liability company or partnership to non Affiliate members of such limited liability company or non Affiliate limited partners of such partnership, so long as after giving effect thereto no Event of Default or Potential Default has occurred and is continuing and so long as at least five (5) Business Days prior to the making of any such distribution the Borrower provides written notice to the Agent, together with a detailed calculation, certified by the Chief Financial Officer of Borrower, setting forth in detail the relevant Subsidiary's compliance with the ratio set forth in clause (A) of the definition of Permitted Distribution Amount or, as the case may be, such Subsidiary's compliance with clause (B) of the definition of Permitted Distribution Amount, in either case with respect to the proposed distribution as of the date of the making thereof. Notwithstanding the foregoing, during the period commencing on the Sixteenth Amendment Effective Date through, but not including the Expiration Date (the "Permitted Redemption Period") the Borrower may declare and pay dividends with respect purchase or redeem its stock up to its Equity Interests payable solely an aggregate of $50 million (including in additional shares such aggregate amount all purchases or redemptions during the Permitted Redemption Period) of its common such stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interestsprovided that, (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 and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to each such Restricted Payment (i) purchase or redemption, no Potential Default or Event of Default exists has occurred and is continuing and, without limiting the generality of the foregoing, that: (x) after giving effect to each such purchase or would result therefrom and (ii) redemption the Borrower is in compliance (and the Borrower demonstrates such compliance to the Agent in detail satisfactory to the Agent) with the covenant set forth in Section 8.02(r) [Maximum Leverage Ratio] and with the covenant set forth in Section 8.02(t) [Minimum Net Worth]. For purposes of demonstrating compliance with the financial covenants covenant set forth in Sections 6.14 Section 8.02(r), Total Indebtedness shall be calculated as of each date of determination (after giving effect to each purchase or redemption of the Borrower's stock) and 6.15Consolidated Cash Flow from Operations shall be calculated as of each date of determination (after giving effect to each purchase or redemption of the Borrower's stock) for the four fiscal quarters then ended.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit Make any of its Subsidiaries to, make or payRestricted Payment, or agree to become or remain liable to make or payany Restricted Payment, any dividend except:
(a) dividends or other distribution distributions payable to another Loan Party;
(b) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower or any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition Subsidiaries may pay dividends in shares of its own Equity Interests (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their other than Disqualified Equity Interests, );
(c) the Borrower may make any Restricted Payments pursuant Payment made by a Subsidiary that is not a Loan Party to and in accordance with stock option plans another Subsidiary that is not a Loan Party or other benefit plans for management or employees of the Borrower and its Subsidiaries and a Loan Party;
(d) the Borrower and its Subsidiaries may make any other Funding Date Distribution;
(e) Restricted Payment (including, for the avoidance Payments consisting of doubt, any repurchase redemptions of Equity Interests of Holdings held by employees, officers, or directors of Holdings (or any spouses, ex-spouses, estates or Affiliates of any of the foregoing); provided, that the aggregate amount of such redemptions made by Holdings in respect of each Fiscal Year prior to the Expiration Date shall not exceed (i) the greater of (A) $2,000,000 or (B) 5.00% of Consolidated EBITDA for the four Fiscal Quarter period most recently ended as of such date of determination in respect of which financial statements have been delivered pursuant to Section 8.1(a) or 8.1(b), as applicable less (ii) the aggregate amount of cash compensation consisting of Qualified LTIP Accrual Amounts added to Consolidated EBITDA pursuant to clause (b)(vii)(B) thereof in respect of such period; provided, further, that Restricted Payments under this Section 9.4(e) shall be subject to the satisfaction of the following conditions: (i) no Event of Default has occurred or would result from such Restricted Payment, (ii) the Borrower pursuant provides Administrative Agent evidence that after giving effect to the Specified Share Repurchase Programconsummation of such Restricted Payment, Holdings and its Subsidiaries on a consolidated basis shall maintain a Consolidated Fixed Charge Coverage Ratio of at least 1.25 to 1.00 on a Pro Forma Basis, measured as of the most recently ended Fiscal Quarter for which the Loan Parties have delivered the financial statements required under Sections 8.1(a) so long or (b), as immediately prior the case may be, for the four Fiscal Quarter period then ended, (iii) after giving effect to the consummation of such Restricted Payment, the Consolidated Total Net Leverage Ratio is less than or equal to 2.50 to 1.00, and (iv) each Loan Party shall be Solvent before and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment Payment; and
(f) dividends, distributions and/or share repurchases in an aggregate amount not to exceed $10,000,000, so long as (i) no Potential Default or Event of Default then exists or would result arises therefrom and (ii) after giving effect thereto on a Pro Forma Basis, the Borrower is Loan Parties are in compliance with the financial covenants set forth in Sections 6.14 9.12 and 6.159.13; provided that the aggregate amount of dividends, distributions and share repurchases under this Section 9.4(f) shall be unlimited so long as after giving effect thereto on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio is less than 2.50 to 1.00.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of Capital Stock, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of Capital Stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of all stock repurchases by the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such collectively, “Restricted Payment Payments”), except (i) each Subsidiary may make Restricted Payments to other Loan Parties, (ii) the Borrower and its Subsidiaries may declare and make Restricted Payments payable solely in the Capital Stock of such Person, (iii) the Borrower may make other Restricted Payments payable to holders of its Capital Stock so long as, in the case of this clause (iii), (A) no Potential Default or Event of Default has occurred and is continuing or exists or would result therefrom after giving effect thereto, and (iiB) the Loan Parties shall be in pro forma compliance with the covenants contained in Section 8.2.14 [Maximum Total Net Leverage Ratio] and Section 8.2.15 [Minimum Interest Coverage Ratio] after giving pro forma effect to such Restricted Payments (including any Indebtedness incurred in connection therewith), in each case, calculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered hereunder pursuant to Section 8.3.1 [Quarterly Financial Statements] or 8.3.2 [Annual Financial Statements], and (iv) the Borrower is in compliance and its Subsidiaries may pay 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 financial covenants set forth in Sections 6.14 and 6.15other provisions of this Section.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of Capital Stock, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of Capital Stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of all stock repurchases by the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such collectively, “Restricted Payment Payments”), except (i) each Subsidiary may make Restricted Payments to other Loan Parties, (ii) the Borrower and its Subsidiaries may declare and make Restricted Payments payable solely in the Capital Stock of such Person, (iii) the Borrower may make other Restricted Payments payable to holders of its Capital Stock so long as, in the case of this clause (iii), (A) no Potential Default or Event of Default has occurred and is continuing or exists or would result therefrom after giving effect thereto, and (iiB) the Loan Parties shall be in pro forma compliance with the covenants contained in Section 8.2.14 [Maximum Leverage Ratio] and Section 8.2.15 [Minimum Interest Coverage Ratio] after giving pro forma effect to such Restricted Payments (including any Indebtedness incurred in connection therewith), in each case, calculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered hereunder pursuant to Section 8.3.1 [Quarterly Financial Statements] or 8.3.2 [Annual Financial Statements], and (iv) the Borrower is in compliance and its Subsidiaries may pay 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 financial covenants set forth in Sections 6.14 and 6.15other provisions of this Section.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties (a) The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of capital stock, including any sinking fund partnership interests or similar deposit, limited liability company interests or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock, partnership interests or limited liability company interests (or warrants, options or rights therefor) (or make any of the foregoing being referred to as a “Restricted Payment”)Management Fee payment, except that:
(a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Programi) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (iA) no Potential Default or Event of Default exists is in existence or would result therefrom and (B) the amount at the time credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such time the Borrower may (1) on the Closing Date, make a distribution of $8,500,000 to Parent from the proceeds of the sale of the Term Notes, (2) upon receipt by the Borrower of the NRGT Reimbursement in an amount equal to or greater than $1,500,000, make a distribution of $1,500,000 to Parent and (3) during the period of 15 Business Days next following each Payment Date, make a distribution to Parent and make the Management Fee payment payable in respect of the quarterly fiscal period ended on or closest to such Payment Date (including accrued Management Fee payments, if any, for prior fiscal quarterly periods which remain unpaid), in an amount not exceeding, in the aggregate for such distribution and Management Fee payment (including accrued Management Fee payments for prior periods), Excess Cash Flow as of such Payment Date; provided, that the amount of Excess Cash Flow as of each Payment Date, and the amount so distributable pursuant to this sub-clause (2) on the basis of the computation of such Excess Cash Flow, shall be subject to adjustment pursuant to Section 8.2.5(b); and
(ii) any Subsidiary of the Borrower is may make dividends and distributions to the Borrower or to any other Subsidiary in compliance respect of Equity Interests of such Subsidiary owned by the Borrower or such other Subsidiary, as the case may be. The Borrower shall not and shall not permit any of its Subsidiaries to enter into any contract or agreement which restricts in any manner the payment by any Subsidiary of the Borrower of dividends or distributions to the Borrower or any other Subsidiary which shall own Equity Interests of such Subsidiary; provided, however, that the Borrower and TWCC may enter into the NRGT Documents, notwithstanding the potential restrictive effects thereof on the payment of dividends and distributions by TWCC.
(b) The distributions and Management Fee payments made by the Borrower to the Parent pursuant to sub-clause (i)(2) of Section 8.2.5
(a) from Excess Cash Flow as of each Payment Date in any fiscal year shall be subject to adjustment in accordance with the further provisions of this Section 8.2.5(b). Following the completion of each fiscal year of the Borrower, the amount of Excess Cash Flow as of each Payment Date in such fiscal year shall be recalculated based upon the annual audited financial covenants statements of the Loan Parties for such fiscal year. For this purpose, Available Cash and Excess Cash Flow as of each such Payment Date shall be recomputed in accordance with the definitions of “Available Cash” and “Excess Cash Flow” set forth in Sections 6.14 Schedule B of the Note Purchase Agreement, in each case using the actual numbers for the applicable quarterly period derived from such audited financial statements. Based on such recomputations, as promptly as practicable, but in any event not later than contemporaneously with the Borrower’s delivery to the Banks of its audited financial statements for such fiscal year pursuant to Section 8.3.3 [Annual Financial Statements], the Borrower shall furnish to each such holder an Officer’s Certificate (which may be combined with the Officer’s Certificate required to be delivered for such fiscal year pursuant to Section 8.3.4 [Certificate of the Borrower]), (i) showing all such recomputations in respect of each fiscal quarter in such fiscal year and 6.15demonstrating the manner in which the same were made, and (ii) setting forth the amount of each adjustment required in accordance with this Section 8.2.5(b) by reason of such recomputations in the amount of any distribution or Management Fee payment made in such fiscal year. All such adjustments based on audited financial information shall be made as follows:
(i) in the event that the audited financial information demonstrates that Parent received monies in excess of that which it should have received for such annual fiscal period, the Borrower shall cause an amount equal to such excess monies to be paid by Parent to the Borrower; provided, however, that if Parent shall not have paid the amount of any such excess monies to the Borrower in full, the amount of such excess monies (or the portion thereof not so paid) shall be deducted from the amounts which would otherwise be available for distribution to Parent pursuant to this Section 8.2.5 in succeeding fiscal quarters until the full amount of such unpaid excess monies shall have been so deducted; and
(ii) in the event that the audited financial information demonstrates that the Borrower should have been permitted to make distributions or Management Fee payments exceeding the amounts thereof actually distributed and paid in such fiscal year (the amount of any such excess, the “Underpaid Amount”), then so long as (x) no Potential Default or Event of Default is in existence or would result therefrom and (y) the amount at the time credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such time, the Borrower may make a further distribution to Parent and/or make a payment in respect of Management Fees, in an amount not exceeding, in the aggregate for such further distribution and payment in respect of Management Fees, the Underpaid Amount. All recomputations and adjustments pursuant to this Section 8.2.5(b) in respect of any fiscal year shall be made within ten Business Days of the Borrower’s delivery to the Banks of the audited financial statements for such fiscal year.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of equity interests, including any sinking fund partnership interests or similar deposit, or limited liability company interests on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), except:
(i) (Restricted Payments payable by any Subsidiary of the foregoing being referred Borrower to as a “the Borrower;
(ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment”), except ;
(iii) Restricted Payments payable by the Borrower provided that: (a) the Debt/EBITDA Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as it if it had occurred on the last day of such fiscal quarter, is less than or equal to 3.00 to 1.00; (b) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and
(iv) Restricted Payments payable by the Borrower may declare to NACCO (a) in respect of the Borrower’s allocable share of NACCO's overhead and pay dividends with respect to its Equity Interests payable solely other selling, general and administrative expenses (including legal, accounting, other professional fees and costs) incurred in additional shares the ordinary course of its common stockbusiness, (b) Subsidiaries may declare and pay dividends ratably in respect of liabilities of NACCO up to, but not exceeding $5,000,000 for any twelve-month period, arising from, in connection with respect or relating to their Equity Intereststhe closing of certain mining operations of Bellaire Corporation, (c) in respect of amounts due to NACCO under the Borrower may make Restricted Payments pursuant to Tax Sharing Agreement and/or Tax Allocation Agreement and (d) in accordance with stock option plans or other benefit plans for management or employees respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and (ii) the Borrower is in compliance with the financial covenants set forth in Sections 6.14 and 6.15Subsidiaries.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and The Borrower shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, any shares of the capital stock of the Borrower (including any sinking fund or similar depositthe Preferred Shares and the Common Shares), or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests any shares of the capital stock (or warrants, options or rights therefor) (of the Borrower, nor permit any such action to be taken indirectly by any of its Subsidiaries, except:
(i) [intentionally omitted];
(ii) in addition to repurchases of Unpledged Shares permitted pursuant to Section 8.2(i)(iv) below, so long as no Event of Default or Potential Default has occurred and is continuing, the foregoing being referred to as a “Restricted Payment”), except Borrower may repurchase not in excess of (a) from and after January 1, 2001 through the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares term of its common stockthe Agreement, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to primarily on a public stock exchange and in accordance with any stock option plans or other benefit plans for management or employees repurchase plan authorized by the Borrower's Board of Directors from time to time, up to $125,000,000 of Unpledged Shares but, so long as the Borrower and its Subsidiaries and (d) Senior Notes remain outstanding, in no event more than the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower amount permitted pursuant to the Specified Share Repurchase Programnote purchase agreements entered into in connection with the Senior Notes, and (b) during the term of this Agreement, $5,000,000 of Restricted Stock;
(iii) any Subsidiary which is less than wholly owned may make distributions as permitted under its organizational documents; and
(iv) during the Borrower's fiscal year 2001 and thereafter, so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (iA) no Default or Event of Default exists or would result therefrom Potential Default has occurred and is continuing, and (iiB) the Borrower is in compliance with Section 8.2(a), in the financial covenants set forth case of both clauses (A) and (B) after giving effect to any such dividend or stock repurchase payment, the Borrower may (1) make dividend payments with respect to the Common Shares and in Sections 6.14 an amount not to exceed, and 6.15(2) in addition to repurchases of Unpledged Shares permitted pursuant to Section 8.2(i)(ii) above, repurchase Unpledged Shares for an amount not to exceed, in any fiscal year on a cumulative basis for clauses (1) and (2), 50% of any net income (or minus 100% of any net loss) of the Borrower and its Subsidiaries from January 1, 2000 through the date of payment.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Federated Investors Inc /Pa/)
Dividends and Related Distributions. Each of the Loan Parties shall not, and nor shall not it permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund shares of capital stock or similar deposit, partnership interests or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”collectively, "Distributions"), except except:
(ai) the Borrower Company may declare and pay dividends with respect to its Equity Interests payable solely in additional make open market repurchases of shares of its common stock, and it may receive shares of its common stock as payment of the exercise price of options, or as payment of taxes associated with the exercise of options or the vesting of restricted shares, which such delivered shares are deemed to be repurchased by the Company at fair market value (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) as defined in the Borrower may make Restricted Payments pursuant to and in accordance with Company's stock option plans plan) on the date of delivery to the Company, so long as no Event of Default or other benefit plans for management Potential Default has occurred and is continuing or employees would result therefrom, and, after giving effect to any such repurchases, the Minimum Liquidity of the Borrower Company and its Subsidiaries taken as a whole shall not be less than $10,000,000 and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect Company shall demonstrate on a pro forma basis) basis that it shall be in compliance with the covenants contained in Sections 7.2.13, 7.2.14 and 7.2.15, as if such repurchase had occurred twelve months prior to the date of such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and repurchase;
(ii) the Borrower is Company may engage in compliance with stock splits (including reverse stock splits) or pay dividends in stock;
(iii) wholly-owned Subsidiaries may make Distributions to the financial covenants set forth in Sections 6.14 and 6.15.Company or another wholly-owned Subsidiary;
(iv) Subsidiaries other than wholly-owned Subsidiaries may make Distributions so long as (a) the aggregate amount of Distributions made by any such Subsidiary
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of equity interests, including any sinking fund partnership interests or similar deposit, or limited liability company interests on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of equity interests (or warrants, options or rights therefor) ), partnership interests or limited liability company interests (any of collectively, the foregoing being referred to as a “Restricted PaymentPayments”), except except:
(ai) Restricted Payments payable by any Subsidiary of the Borrower to the Borrower;
(ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment;
(iii) Restricted Payments payable by the Borrower provided that: (1) the Debt/EBITDA Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as it if it had occurred on the last day of such fiscal quarter, is less than or equal to 2.75 to 1.0; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and
(iv) Restricted Payments payable by the Borrower may declare to NACCO (i) in respect of the Borrower’s allocable share of NACCO’s overhead and pay dividends with respect to its Equity Interests payable solely other selling, general and administrative expenses (including legal, accounting, other professional fees and costs) incurred in additional shares the ordinary course of its common stockbusiness, (bii) Subsidiaries may declare and pay dividends ratably in respect of liabilities of NACCO up to, but not exceeding $5,000,000 for any twelve-month period, arising from, in connection with respect or relating to their Equity Intereststhe closing of certain mining operations of Bellaire Corporation, (ciii) in respect of amounts due to NACCO under the Borrower may make Restricted Payments pursuant to Tax Sharing Agreement and (iv) in accordance with stock option plans or other benefit plans for management or employees respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and (ii) the Borrower is in compliance with the financial covenants set forth in Sections 6.14 and 6.15Subsidiaries.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Nacco Industries Inc)
Dividends and Related Distributions. Each of the The Loan Parties shall not, and shall not permit any of its Subsidiaries Subsidiaries, other than any Specified Excluded Subsidiary, to, directly or indirectly, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity InterestsCapital Stock, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests Capital Stock, except:
(i) dividends or warrants, options other distributions (A) to a Loan Party and (B) by a Non-Guarantor Subsidiary to another Non-Guarantor Subsidiary;
(ii) dividends or rights therefor) other distributions payable in the form of Capital Stock of a Borrower (any of the foregoing being referred to other than Disqualified Stock (other than as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments permitted pursuant to and 8.2.1(xiii) as related to paid-in-kind payments in accordance connection with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant preferred units in existence prior to the Specified Share Repurchase ProgramClosing Date));
(iii) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Potential Default or Event of Default exists exists, in conjunction with a dividend or would result therefrom other distribution made by iGo to Steel Excel, Inc., corresponding dividends or distributions otherwise payable to any Independent Shareholder of iGo in an amount limited to their pro rata shares of such dividends or distributions based on their respective proportionate ownership interests;
(iv) so long as no Potential Default or Event of Default exists, dividends and other distributions to Handy the proceeds of which are used solely to make contributions to the WHX Plan, which amounts (x) shall not exceed the minimum required contribution to the WHX Plan under Section 412 of the Code due on the date of such dividend or distribution and (iiy) shall not count toward the amount of dividends or other distributions to Handy permitted under clauses (x) of this Section 8.2.5;
(v) so long as no Potential Default or Event of Default exists, distributions by (a) Steel to the holders of its preferred units in accordance with the terms of its partnership agreement and (b) WebFinancial Holding Corporation to the holders of its preferred units in accordance with the terms of its certificate of designation;
(vi) the Borrower is forgiveness of loans owing by (A) any Loan Party to any other Loan Party, (B) any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary and (C) any Loan Party to any Non-Guarantor Subsidiary, in compliance each case outstanding on the Closing Date, and any deemed non-cash dividend in connection with such forgiveness;
(vii) dividends or other distributions to Steel and from Steel to the financial covenants set forth in Sections 6.14 holders of its Capital Stock to permit such holders to pay federal and 6.15.state income Taxes when due and payable to the extent such Taxes are attributable to the income of Steel and its Subsidiaries;
Appears in 1 contract
Sources: Revolving Credit Agreement (Steel Partners Holdings L.P.)
Dividends and Related Distributions. Each of the No Loan Parties Party shall, nor shall not, and shall not any Loan Party permit any of its Subsidiaries to, make declare or paymake, directly or indirectly, any Restricted Payment, or agree to become or remain liable to make or pay, incur any dividend or other distribution of any nature obligation (whether in cash, property, securities contingent or otherwise) on account to do so, except that:
(a) Borrower and each Subsidiary may make Restricted Payments to any Loan Party and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of or the type of Equity Interest in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests which such Restricted Payment is being made;
(or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (ab) the Borrower Parent and each Subsidiary may declare and pay dividends with respect to its Equity Interests make dividend payments or other distributions payable solely in additional the common stock or other common Equity Interests of such Person;
(c) the Parent and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their stock or other common 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 and ; and
(d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists under the Loan Documents shall exist at the time of such declaration or would could reasonably be expected to result therefrom from such dividend, distribution or redemption (tested solely at the time of declaration of any such dividend, distribution or redemption) and the Loan Parties shall be in compliance with the covenants set forth in Article VIII after giving effect to any such dividend, distribution or redemption on a pro forma basis for the four fiscal quarter period most recently then ended for which financial statements have been delivered (tested solely at the time of declaration of any such dividend, distribution or redemption),
(i) during the calendar year ending December 31, 2017, the Parent may make, declare and pay lawful cash dividends or distributions to its shareholders or redeem capital stock in an aggregate amount not to exceed $3,000,000, and
(ii) during the calendar year ending December 31, 2018 and thereafter, the Parent may make, declare and pay lawful cash dividends or distributions to its shareholders or redeem capital stock in an aggregate amount not to exceed in any calendar year the greater of (A) $ 7,000,000 and (B) 50% of the Cash Flow Available for Dividends for the immediately preceding calendar year; provided, further, in case of subclauses (i) and (ii) of this clause (d), that the Borrower amount of any dividend or distribution that is not paid in compliance with cash but is reinvested in Equity Interests in the financial covenants set forth in Sections 6.14 and 6.15form of common stock of the Parent shall be excluded from this calculation.
Appears in 1 contract
Dividends and Related Distributions. Each of The REIT Guarantor, the Loan Parties shall notAffiliate REITs, the Borrower and shall their respective Subsidiaries will not permit make any of its Subsidiaries to, make or pay, Restricted Payment or agree to become or remain liable to make any Restricted Payment if a Potential Default or payEvent of Default has occurred and is continuing or would result therefrom; provided that, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (any of notwithstanding the foregoing being referred and, subject to as the proviso at the end of this sentence, notwithstanding the occurrence or continuance of a “Restricted Payment”)Potential Default or Event of Default, except (a) the Borrower may declare and pay dividends with respect satisfy any request or demand to its Equity Interests payable solely in additional shares redeem any of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments partnership interests by any holder thereof made pursuant to and in accordance with its organizational documents with shares of stock option plans or other benefit plans for management or employees of the Borrower REIT Guarantor and its Subsidiaries pay cash distributions to the REIT Guarantor and (d) other holders of partnership interests in the Borrower and its Subsidiaries may make with respect to any other Restricted Payment (including, fiscal year to the extent necessary for the avoidance of doubt, REIT Guarantor or any repurchase of Equity Interests of the Borrower pursuant Affiliate REITs to distribute, and the Specified Share Repurchase Program) REIT Guarantor and the Affiliate REITs may so long as immediately prior distribute, cash dividends to their shareholders in an aggregate amount not to exceed the minimum amount required for the REIT Guarantor and/or the Affiliate REITs to maintain their REIT Status and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment avoid (i) no the payment of taxes imposed under Code Section 857(b)(1) and 4981 of the Code and analogous provisions of state law, and (ii) to avoid the payment of taxes imposed under Section 857(b)(3) of the Code and analogous provisions of state law; provided that if a Potential Default or Event of Default exists under Section 11.1(k) exists, or would result therefrom and (ii) if the Obligations have been accelerated, neither the REIT Guarantor, the Affiliate REITs or the Borrower is in compliance with may make any Restricted Payments. Subsidiaries (other than the financial covenants set forth in Sections 6.14 Borrower) may make Restricted Payments to the Borrower and 6.15other Subsidiaries at any time.
Appears in 1 contract
Dividends and Related Distributions. Each of the No Loan Parties Party shall notdeclare or make, and shall not permit directly or indirectly, any of its Subsidiaries to, make or payRestricted Payment, or agree to become or remain liable to make or pay, incur any dividend or other distribution of any nature obligation (whether in cash, property, securities contingent or otherwise) on account to do so, except that:
(a) each Subsidiary of or any Loan Party may make Restricted Payments to any Loan Party 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 its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests which such Restricted Payment is being made;
(or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (ab) the Borrower and each Subsidiary of any Loan Party may declare and pay dividends with respect to its Equity Interests make dividend payments or other distributions payable solely in additional shares the common stock or other common Equity Interests of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, such Person;
(c) the Borrower and each Subsidiary of any Loan Party may make Restricted Payments pursuant to and in accordance purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and common Equity Interests; and
(d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists shall have occurred and be continuing or would result therefrom therefrom, Borrower may (i) declare or pay cash dividends to its stockholders and (ii) purchase redeem or otherwise acquire for cash Equity Interests issued by it, (A) so long as the Leverage Ratio is less than or equal to 4.25:1.00 before and after giving effect thereto, in an aggregate amount for clauses (i) and (ii) not to exceed $3,000,000 in any fiscal year of the Borrower and (B) so long as the Leverage Ratio is less than or equal to 3.50:1.00 before and after giving effect thereto, in compliance an unlimited amount.
(e) the Borrower may conduct “Share Withholding” and accept Borrower shares (y) for the payment of the option exercise price or (z) for required tax withholding in connection with the financial covenants set forth in Sections 6.14 and 6.15.option exercises or vesting of other equity awards under Borrower equity plans
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Intereststheir respective shares of capital stock or partnership interests, including any sinking fund or similar depositas the case may be, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests their respective shares of capital stock (or warrants, options or rights therefor) (any of or partnership interests, as the foregoing being referred to as a “Restricted Payment”)case may be, except (ai) dividends or distributions in respect of a partnership interest payable by any Subsidiary to the Borrower, (ii) dividends payable by the Borrower solely in shares of capital stock of the Borrower, and (iii) up to $500,000 of distributions per year payable in the aggregate by the Subsidiaries of the Borrower which are limited liability companies or partnerships to non Affiliate members of such limited liability companies or non Affiliate limited partners of such partnerships, so long as after giving effect thereto no Event of Default or Potential Default has occurred and is continuing. Notwithstanding the foregoing, the Borrower may declare and pay dividends with respect purchase or redeem its stock up to its Equity Interests payable solely in additional shares an aggregate of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) $15 million of such stock for the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees period of the Borrower and its Subsidiaries and Thirteenth Amendment Effective Date through June 30, 1997, up to an aggregate of $20 million (dincluding in such aggregate amount all purchases or redemptions in prior periods) the Borrower and its Subsidiaries may make any other Restricted Payment (including, of such stock for the avoidance of doubt, any repurchase of Equity Interests period of the Borrower pursuant Thirteenth Amendment Effective Date through September 30, 1997, and up to an aggregate of $25 million (including in such aggregate amount all purchases or redemptions in prior periods) of such stock for the Specified Share Repurchase Program) so long as immediately prior to and period of the Thirteenth Amendment Effective Date through December 30, 1997, provided that, after giving effect (including giving effect on a pro forma basis) to each such Restricted Payment (i) purchase or redemption, no Potential Default or Event of Default exists has occurred and is continuing and, without limiting the generality of the foregoing, that: (x) after giving effect to each such purchase or would result therefrom and (ii) redemption the Borrower is in compliance (and the Borrower demonstrates such compliance to the Agent in detail satisfactory to the Agent) with the financial covenants Minimum Net Worth covenant set forth in Sections 6.14 Section 8.02(t); and 6.15(y) after giving effect to each such purchase or redemption the ratio of Total Indebtedness to Consolidated Cash Flow from Operations does not exceed 4.85 to 1.0 (and the Borrower demonstrates such compliance to the Agent in detail satisfactory to the Agent). For purposes of clause (y) in the preceding sentence, Total Indebtedness shall be calculated as of each date of determination (after giving effect to each purchase or redemption of the Borrower's stock) and Consolidated Cash Flow from Operations shall be calculated as of each date of determination (after giving effect to each purchase or redemption of the Borrower's stock) for the four fiscal quarters then ended."
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Intereststheir respective shares of capital stock or partnership interests, including any sinking fund or similar depositas the case may be, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests their respective shares of capital stock (or warrants, options or rights therefor) (any of or partnership interests, as the foregoing being referred to as a “Restricted Payment”)case may be, except (ai) dividends or distributions in respect of a partnership interest or capital stock payable by any Subsidiary to the Borrower or any other Restricted Subsidiary, (ii) dividends payable by the Borrower solely in shares of capital stock of the Borrower, (iii) up to the Permitted Distribution Amount of distributions per year payable in the aggregate by any Subsidiary of the Borrower which is a limited liability company or partnership to non-Affiliate members of such limited liability company or non-Affiliate limited partners of such partnership, so long as after giving effect thereto no Event of Default or Potential Default has occurred and is continuing and so long as at least five (5) Business Days prior to the making of any such distribution the Borrower provides written notice to the Agent, together with a detailed calculation, certified by the Chief Financial Officer of Borrower, setting forth in detail the relevant Subsidiary's compliance with the ratio set forth in clause (A) of the definition of Permitted Distribution Amount or, as the case may declare and pay dividends be, such Subsidiary's compliance with clause (B) of the definition of Permitted Distribution Amount, in either case with respect to its Equity Interests payable solely in additional shares the proposed distribution as of its common stockthe date of the making thereof, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Programiv) so long as immediately prior to no Event of Default or Potential Default exists and is continuing after giving effect thereto, a one-time dividend by the Borrower to Paragon payable on such date as the Borrower elects (including so long as on the date of payment, but prior to such payment, the Borrower has delivered to the Agent a certification that after giving effect on a pro forma basis) to such Restricted Payment (i) dividend or distribution no Default or Event of Default or Potential Default exists or would result therefrom and (ii) is continuing and that the Borrower is in compliance with the financial covenants set forth in Sections 6.14 Section 8.02(r) [Maximum Leverage Ratio] and 6.15.Section 8.02(u) [Senior Indebtedness to Cash Flow from Operations Ratio]), in an amount not exceeding, as of the date of payment, the Adjusted Net Income of the Borrower and its Subsidiaries determined in accordance with GAAP for the most recent twelve fiscal calendar months prior to such date of payment; (v) amounts payable by the Borrower to Paragon as reimbursement of ordinary course business expenses of the Borrower paid by Paragon on behalf of the Borrower; (vi) other dividends or distributions payable by the Borrower to Paragon from time to time in an aggregate amount (including all dividends and distributions made or proposed to be made pursuant to this clause (vi) from and after the Seventeenth Amendment Effective Date through the proposed date of payment) not to exceed 50% of the Adjusted Net Income of the Borrower and its Subsidiaries determined in accordance with GAAP, for each fiscal quarter ending from and after the Seventeenth Amendment Effective Date through the last day of the fiscal quarter ended prior to the proposed date of payment of such dividend or distribution so long as after
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and nor shall not it permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund shares of capital stock or similar deposit, partnership interests or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of capital stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”collectively, "Distributions"), except except:
(ai) the Borrower Company may declare and pay dividends with respect to its Equity Interests payable solely in additional make open market repurchases of shares of its common stock, and it may receive shares of its common stock as payment of the exercise price of options, or as payment of taxes associated with the exercise of options or the vesting of restricted shares, which such delivered shares are deemed to be repurchased by the Company at fair market value (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) as defined in the Borrower may make Restricted Payments pursuant to and in accordance with Company's stock option plans plan) on the date of delivery to the Company, so long as no Event of Default or other benefit plans for management Potential Default has occurred and is continuing or employees would result therefrom, and, after giving effect to any such repurchases, the Minimum Liquidity of the Borrower Company and its Subsidiaries taken as a whole shall not be less than $10,000,000 and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect Company shall demonstrate on a pro forma basis) basis that it shall be in compliance with the covenants contained in Sections 7.2.13, 7.2.14 and 7.2.15, as if such repurchase had occurred twelve months prior to the date of such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and repurchase;
(ii) the Borrower is Company may engage in compliance stock splits (including reverse stock splits) or pay dividends in stock;
(iii) wholly-owned Subsidiaries may make Distributions to the Company or another wholly-owned Subsidiary;
(iv) Subsidiaries other than wholly-owned Subsidiaries may make Distributions so long as (a) the aggregate amount of Distributions made by any such Subsidiary to any Person other than the Company or a Subsidiary of the Company in any fiscal year does not exceed 50% of such Person's pro rata share (based on the percentage of stock or other equity interests owned by such Person) of such Subsidiary's net income for such fiscal year as determined in accordance with GAAP and (b) no later than ten (10) days prior to any such Distribution, the Company shall have given written notice to the Lenders and the Agent thereof, together with calculations demonstrating that such Distribution complies with this clause (iv); and
(v) the Company may pay dividends on its Class A and B common stock and preferred stock in accordance with the financial covenants terms therefor set forth in Sections 6.14 the Company's articles of incorporation as in effect on the date of this Agreement, so long as no Event of Default or Potential Default has occurred and 6.15is continuing or would result therefrom; provided, however, that notwithstanding any term contained herein to the contrary, so long as no Event of Default described in Section 8.1.1, 8.1.13, 8.1.14 or 8.1.15 has occurred and is continuing or would result therefrom, the Company shall be permitted to pay, in strict accordance with the terms of the Company's articles of incorporation as in effect on the date of this Agreement, a dividend not to exceed 3.5 cents per share, up to an aggregate amount not to exceed $1,000,000 per dividend, to the holders of the Company's Class A nonvoting common stock only if nonpayment of such dividend would cause the holders of such stock to acquire voting rights described in Article III, Section B, paragraph 3 of such articles of incorporation.
Appears in 1 contract
Sources: Revolving Credit Facility Credit Agreement (Brady Corp)
Dividends and Related Distributions. Each of the Loan Parties The Borrower shall not, and shall not permit any Subsidiary of its Subsidiaries the Borrower to, make declare or paypay any dividend (other than dividends payable solely in Common Stock and dividends payable by any wholly-owned Subsidiary of the Borrower to the Borrower or to another wholly-owned Subsidiary of the Borrower) on, or agree to become make any payment on account of, or remain liable to make or pay, any dividend set apart assets for a sinking or other distribution of any nature (whether in cashanalogous fund for, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirementretirement or other acquisition of, cancellation, termination or acquisition any shares of its Equity Interests (or warrants, options or rights therefor) (any class of Capital Stock of the foregoing Borrower or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary of Borrower (such declarations, payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being referred to as a “herein called "Restricted Payment”Payments), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stockthat, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Potential Event of Default or Event of Default exists has occurred, is continuing or would will result therefrom from the payment of a Restricted Payment, the Borrower may during any fiscal year make Restricted Payments as follows: the Borrower may (a) declare, and pay within ninety (90) days of the date of declaration, dividends on Common Stock, (b) declare, and pay within ninety (90) days of the date of declaration, dividends on Preferred Stock and (iic) redeem Preferred Stock in accordance with the Borrower's Restated Articles of Incorporation, as amended; provided, however, that nothing contained in this Section 7.2(e) shall prohibit the Borrower is in compliance with from making any Restricted Payments to the financial covenants set forth in Sections 6.14 and 6.15holders of its 9% Cumulative Preferred Stock pursuant to the Borrower's Restated Articles of Incorporation, as amended, except to the extent that such payments would be prohibited by the Borrower's Restated Articles of Incorporation, as amended.
Appears in 1 contract
Sources: Term Loan Agreement (Pg Energy Inc)
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsshares of Capital Stock, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests shares of Capital Stock (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of all stock repurchases by the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such collectively, “Restricted Payment Payments”), except (i) each Subsidiary may make Restricted Payments to other Loan Parties, (ii) the Borrower and its Subsidiaries may declare and make Restricted Payments payable solely in the Capital Stock of such Person, (iii) the Borrower may make other Restricted Payments payable to holders of its Capital Stock so long as, in the case of this clause (iii), (A) no Potential Default or Event of Default has occurred and is continuing or exists or would result therefrom after giving effect thereto, and (iiB) the Loan Parties shall be in pro forma compliance with the covenants contained in Section 8.2.14 [Maximum Leverage Ratio] and Section 8.2.15 [Minimum Interest Coverage Ratio] after giving pro forma effect to such Restricted Payments (including any Indebtedness incurred in connection therewith), in each case, calculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered hereunder pursuant to Section 8.3.1 [Quarterly Financial Statements] or 8.3.2 [Annual Financial Statements], and (iv) the Borrower is in compliance and its Subsidiaries may pay 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 financial covenants set forth other provisions of this Section.
(d) Section 8.2.7(vi) of the Credit Agreement is hereby amended and restated in Sections 6.14 and 6.15.its entirety as follows:
Appears in 1 contract
Dividends and Related Distributions. Each of the NoThe Loan Parties PartyParties shall not, and shall not permit any of its itstheir Subsidiaries (other than any Unrestricted Subsidiary) to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interestsitstheir shares of equity interests, including any sinking fund partnership interests or similar deposit, or limited liability company interests on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests itstheir shares of equity interests (or warrants, options or rights therefor) ), partnership interests or limited liability company interests (any of collectively, the foregoing being referred to as a "“Restricted PaymentPayments"”), except except:
(ai) Restricted Payments payable by any Subsidiary of the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, the Borrower;
(bii) 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 payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment;
(iii) (A) Restricted Payments payable by the Loan Parties in an aggregate amount not to exceed $5,000,000 for any twelve-month period, excluding the Restricted Payments pursuant to Section 8.2.5(iv) of this Agreement, provided that no Event of Default shall have occurred and be continuing at the time of such Restricted Payment or would result therefrom, and (B) Restricted Payments payable by the Borrower in excess of $5,000,000 in the aggregate for any twelve-month period excluding the Restricted Payments pursuant to Section 8.2.5(iv) of this Agreement so long as no Event of Default shall have occurred and be NAI-1540997189v1 continuing at the time of such proposed Restricted Payment or would result therefrom; provided that, in the case of any Restricted Payment being made pursuant to this subclause (B) prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) if, immediately after giving effect to such Restricted Payment, the pro forma Liquidity is greater than or equal to $25,000,000 and (b) either: (x) immediately after giving effect to such Restricted Payment, the pro forma Net Debt/EBITDA Ratio as of (1) the date that Restricted Payment is made with respect to the determination of Net Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is less than or equal to 1.50 to 1.00, then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000, or (b) if, immediately after giving effect to such Restricted Payment, the pro forma Net Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Net Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 1.50 to 1.00, then (Aor (x) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to the date such of Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000.;
(iv) Restricted Payments payable by the Borrower to NACCO (a) in respect of the Borrower’s allocable share of NACCO'sNACCO’s overhead and other selling, general and administrative expenses (including legal, accounting, other professional fees and costs) incurred in the ordinary course of business, (b) in respect of liabilities of NACCO up to, but not exceeding $5,000,000 in the aggregate for any twelve-month period, arising from, in connection with or relating to the closing of (1) certain mining operations of Bellaire Corporation and (2) in the event that Centennial Natural Resources is a direct Subsidiary of NACCO, certain mining operations of Centennial Natural Resources, (c) in respect of amounts due to NACCO under the Tax Sharing Agreement and/or Tax Allocation Agreement and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance in respect of doubt, any repurchase of Equity Interests state or local taxes paid by NACCO on behalf of the Borrower pursuant to and/or its Subsidiaries.;
(v) Restricted Payments made for the Specified Share Repurchase Programpurpose of qualifying directors; and
(vi) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default Payments in satisfaction of the validly pre-existing preemptive or Event contractual rights of Default exists or would result therefrom and (ii) the Borrower is minority shareholders in compliance connection with the financial covenants set forth simultaneous issuance of stock or other equity interests to a Loan Party or a Subsidiary whereby such Loan Party or such Subsidiary maintains their same proportionate interest in Sections 6.14 and 6.15such Subsidiary.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend Restricted Payments, except:
(i) dividends or other distribution of distributions payable (A) from any nature Loan Party to another Loan Party and (whether in cash, property, securities B) from any Subsidiary that is not a Loan Party to any Loan Party or otherwise) on account of or in respect any of its Equity Interests, including Subsidiaries;
(ii) any sinking fund or similar deposit, or on account of the purchase, redemptionredemption or retirement in connection with a transaction permitted by Section 8.2.6 [Liquidations, retirementMergers, cancellationConsolidations, termination or acquisition of its Equity Interests Acquisitions];
(or warrants, options or rights thereforiii) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (ix) no Default or Event of Default exists has occurred and is continuing or would result therefrom (in the case of a Restricted Payment in the form of a dividend to equityholders, at the time of declaration thereof, and in all other cases, at the time of such Restricted Payment) and (iiy) the Borrower is Leverage Ratio (calculated on a Pro Forma Basis) does not exceed 2.00 to 1.00 (calculated as of the last day of the fiscal quarter of Crocs then most recently ended for which financial statements have been delivered pursuant to Section 6.1.6);
(iv) Crocs may purchase, repurchase or otherwise retire Equity Interests (1) upon the exercise of stock options, deferred stock units and restricted shares to the extent such Equity Interests represent a portion of the exercise price of such stock options, deferred stock units or restricted shares or taxes payable in compliance connection therewith, (2) in connection with the withholding of a portion of the Equity Interests granted or awarded to a director, an employee or any other service provider to pay for the taxes payable by such director, employee or any other service provider upon such grant or award or (3) in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) 7.50% of Consolidated Net Tangible Assets (measured at the time of such Restricted Payment);
(v) Crocs may make (A) Restricted Payments of the type referred to in clause (a) or (b) of the definition thereof in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) 7.50% of Consolidated Net Tangible Assets (measured at the time of such Restricted Payment) and (B) Restricted Payments of the type referred to in clause (c) of the definition thereof in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) 7.50% of Consolidated Net Tangible Assets (measured at the time of such Restricted Payment);
(vi) so long as (x) no Default or Event of Default has occurred and is continuing (in the case of a Restricted Payment in the form of a dividend to equityholders, the time of declaration thereof, and in all other cases, at the time of such Restricted Payment) and (y) after giving effect to such Restricted Payment, the Consolidated Fixed Charge Coverage Ratio shall not be less than 2.00 to 1.00 (calculated as of the last day of the fiscal quarter of Crocs then most recently ended for which financial covenants set forth statements have been delivered pursuant to Section 6.1.6), Crocs may make additional Restricted Payments in Sections 6.14 an amount not to exceed the Available Amount; or
(vii) fees and 6.15charges payable to the IHB in the ordinary course of business.
Appears in 1 contract
Sources: Credit Agreement (Crocs, Inc.)
Dividends and Related Distributions. Each of the Loan Parties shall not, and The Borrower shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, any shares of the capital stock of the Borrower (including any sinking fund or similar depositthe Preferred Shares and the Common Shares), or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its Equity Interests any shares of the capital stock (or warrants, options or rights therefor) (of the Borrower, nor permit any such action to be taken indirectly by any of the foregoing being referred to its Subsidiaries, except: [intentionally omitted]; so long as a “Restricted Payment”)no Event of Default or Potential Default has occurred and is continuing, except (a) the Borrower may declare repurchase not in excess (i) in fiscal year 1996, $24,420,000 of the Unpledged Shares (other than the Restricted Stock); (ii) in fiscal year 1997 and pay dividends with respect to its Equity Interests payable solely in additional shares each fiscal year thereafter during the term of its common stockthis Agreement, $2,000,000 of the Unpledged Shares (other than the Restricted Stock) and, (biii) Subsidiaries may declare during the term of this Agreement, $1,000,000 of Restricted Stock; and pay dividends ratably with respect to their Equity Interestsat any time, (c) the Borrower may make Restricted Payments pursuant repurchase up to and in accordance with stock option plans or other benefit plans for management or employees $1,900,000 of the Borrower and its Subsidiaries and (d) Unpledged Shares held by Mellon Bank, N.A., as trustee of the Borrower and its Subsidiaries Westinghouse Electric Corporation Master Trust Agreement for the Westinghouse Pension Plan, or any successor trustee; Passport or any other Subsidiary which is less than wholly owned may make any other Restricted Payment (includingdistributions as permitted under its organizational documents; and during the Borrower's fiscal year 1998 and thereafter, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (iA) no Default or Event of Default exists or would result therefrom Potential Default has occurred and is continuing, and (iiB) the Borrower is in compliance with Section 8.2(a), in the financial covenants set forth case of both clauses (A) and (B) after giving effect to any such dividend payment, the Borrower may make dividend payments with respect to the Common Shares in Sections 6.14 any fiscal year in an amount not to exceed, on a cumulative basis, $20,000,000 plus 50% of any net income (or minus 100% of any net loss) of the Borrower and 6.15its Subsidiaries from January 1, 1998 through the date of payment.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, (i) make or pay, pay or (ii) agree to become or remain liable to make or paypay (provided that this clause (ii) shall not prohibit the issuance of the Specified Preferred Equity), in each case, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends Restricted Payments with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries Subsidiaries, (d) the Borrower may declare and pay cash dividends with respect to its common Equity Interests in an aggregate amount for any fiscal year of the Borrower not to exceed the lesser of (i) $35,000,000 and (dii) an amount equal to $0.225 per share per fiscal quarter and (e) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom therefrom, (ii) the Leverage Ratio is not greater than 3.75 to 1.00 and (iiiii) the Borrower is in compliance with the financial covenants covenant set forth in Sections 6.14 and Section 6.15.
(c) Clause (j) of Article VII of the Credit Agreement is amended to (i) add “(i)” at the beginning thereof and (ii) add the following as a new clause (iii) thereof: “or (iii) the occurrence of a change in control, or other similar provision, as defined in any declaration, agreement or instrument evidencing, governing or providing for the issuance of the Specified Preferred Equity (triggering a default or mandatory prepayment, distribution or redemption, which default or mandatory prepayment, distribution or redemption has not been waived in writing)”.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend Restricted Payments, except:
(i) dividends or other distribution of distributions payable (A) from any nature Loan Party to another Loan Party and (whether in cash, property, securities B) from any Subsidiary that is not a Loan Party to any Loan Party or otherwise) on account of or in respect any of its Equity Interests, including Subsidiaries;
(ii) any sinking fund or similar deposit, or on account of the purchase, redemptionredemption or retirement in connection with a transaction permitted by Section 8.2.6 [Liquidations, retirementMergers, cancellationConsolidations, termination or acquisition of its Equity Interests Acquisitions];
(or warrants, options or rights thereforiii) (any of the foregoing being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (ix) no Default or Event of Default exists has occurred and is continuing or would result therefrom (in the case of a Restricted Payment in the form of a dividend to equityholders, at the time of declaration thereof, and in all other cases, at the time of such Restricted Payment) and (iiy) the Borrower is Leverage Ratio (calculated on a Pro Forma Basis) does not exceed 2.00 to 1.00 (calculated as of the last day of the fiscal quarter of Crocs then most recently ended for which financial statements have been delivered pursuant to Section 6.1.6);
(iv) Crocs may purchase, repurchase or otherwise retire Equity Interests (1) upon the exercise of stock options, deferred stock units and restricted shares to the extent such Equity Interests represent a portion of the exercise price of such stock options, deferred stock units or restricted shares or taxes payable in compliance connection therewith, (2) in connection with the withholding of a portion of the Equity Interests granted or awarded to a director, an employee or any other service provider to pay for the taxes payable by such director, employee or any other service provider upon such grant or award or (3) in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) 7.50% of Consolidated Net Tangible Assets (measured at the time of such Restricted Payment);
(v) Crocs may make (A) Restricted Payments of the type referred to in clause (a) or (b) of the definition thereof in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) 7.50% of Consolidated Net Tangible Assets (measured at the time of such Restricted Payment) and (B) Restricted Payments of the type referred to in clause (c) of the definition thereof in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) 7.50% of Consolidated Net Tangible Assets (measured at the time of such Restricted Payment); or
(vi) so long as (x) no Default or Event of Default has occurred and is continuing (in the case of a Restricted Payment in the form of a dividend to equityholders, the time of declaration thereof, and in all other cases, at the time of such Restricted Payment) and (y) after giving effect to such Restricted Payment, the Consolidated Fixed Charge Coverage Ratio shall not be less than 2.00 to 1.00 (calculated as of the last day of the fiscal quarter of Crocs then most recently ended for which financial covenants set forth statements have been delivered pursuant to Section 6.1.6), Crocs may make additional Restricted Payments in Sections 6.14 and 6.15an amount not to exceed the Available Amount.
Appears in 1 contract
Sources: Credit Agreement (Crocs, Inc.)
Dividends and Related Distributions. Each of the Loan Parties The Guarantor shall not, and shall not permit any Subsidiary of its Subsidiaries the Guarantor to, declare or make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (any of the foregoing being referred to as a “Restricted Stock Payment”), except as follows:
(a) So long as no Event of Default or Potential Default shall have occurred and be continuing or shall occur after giving effect thereto, Stock Payments made directly or indirectly to Black Box Corporation (the "Parent") or, in the case of any Subsidiary of the Guarantor, to the Guarantor for the purposes of paying reasonable administrative costs and salaries of the Parent's or, in the case of Stock Payments made directly or indirectly to the Guarantor by any Subsidiary of the Guarantor, the Guarantor's employees, paying taxes and paying expenses incurred in the ordinary course of business; provided, that no Stock Payment pursuant to this Section 5.03(a) may be made if, after giving effect to such Stock Payment, the aggregate amount of Stock Payments made during any fiscal year of the Guarantor, together with any loans and advances made by the Borrower pursuant to Section 7.06(b)(ii) of the Credit Agreement (other than to the Parent for the purpose of paying in full the Indebtedness secured by the Senior Subordinated Indenture) during such fiscal year, would exceed $1,500,000;
(b) So long as no Event of Default or Potential Default shall have occurred and be continuing or shall occur after giving effect thereto, Stock Payments to the Guarantor for the purpose of making Stock Payments to the extent permitted by Section 5.03 of the Black Box Guaranty;
(c) Stock Payments to the Parent for the purpose of repaying certain Indebtedness of the Parent to the Borrower in the principal amount of $43,670,000;
(d) Stock Payments made by the Borrower to the Guarantor so long as the proceeds thereof shall be loaned to the Borrower as permitted by Section 7.04 of the Credit Agreement; and
(e) A Subsidiary of the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares make Stock Payments if all of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the capital stock of such Subsidiary is owned by the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management by a direct or employees indirect wholly-owned Subsidiary of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any repurchase of Equity Interests of the Borrower pursuant to the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect on a pro forma basis) to such Restricted Payment (i) no Default or Event of Default exists or would result therefrom and (ii) the Borrower is in compliance with the financial covenants set forth in Sections 6.14 and 6.15Borrower.
Appears in 1 contract
Dividends and Related Distributions. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination retirement or acquisition of its shares of Equity Interests (or warrants, options or rights therefor) (any of the foregoing being referred to as each, a “Restricted Payment”), except except:
(ai) dividends or other distributions payable to a Loan Party;
(ii) Restricted Payments from Foreign Subsidiaries (other than the Foreign Borrower) to other Foreign Subsidiaries;
(iii) any Restricted Payment that is made in connection with a Permitted Transaction;
(iv) payments of cash, dividends, distributions, advances or other Restricted Payments by any Loan Party or any Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon (i) the Borrower exercise of options or warrants or (ii) the conversion or exchange of Equity Interests of any such Person;
(v) each Subsidiary may declare and pay dividends with respect to purchase, redeem or otherwise acquire its Equity Interests payable solely in additional shares or make other Restricted Payments with the net cash proceeds received by Parent from the substantially concurrent issuance and sale of its common stock, stock of Parent;
(b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (cvi) 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 and (d) the Borrower and its Subsidiaries may make any other Restricted Payment (including, for the avoidance of doubt, any 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 Borrower pursuant 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;
(vii) Restricted Payments to Parent or any Subsidiary (or, in the Specified Share Repurchase Programcase of non-Wholly Owned Subsidiaries, to Parent or a Subsidiary and each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of Parent or such Subsidiary) based on their relative ownership interests so long as immediately prior any repurchase of its Equity Interests from a Person that is not the Parent or a Subsidiary is permitted under Section 8.2.4 [Loans and Investments]);
(viii) Restricted Payments in an amount of up to and after giving effect (including giving effect a) $25,000,000 per fiscal year plus (b) additional amounts so long as, in the case of this clause (b), the Leverage Ratio is less than or equal to 3.00 to 1.00 on a pro forma basis) to Pro Forma Basis after the making of such Restricted Payment (i) and, in each case, no Default or Event of Default exists shall have occurred and be continuing or would result therefrom be caused by the making of such Restricted Payment;
(ix) payments or distributions to pay the tax liabilities of any direct or indirect owner of all or any part of any Borrower’s equity, to the extent such tax liabilities are attributable to the activities of, or such person’s ownership of, such Borrower or its Subsidiaries; and
(x) other Restricted Payments utilizing some or all of the Available Amount Basket, provided that no Event of Default shall have occurred and (ii) be continuing or would be caused by the Borrower is in compliance with the financial covenants set forth in Sections 6.14 and 6.15making of such Restricted Payment.
1. 1097380671\10\AMERICAS
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Dividends and Related Distributions. Each No Loan Party shall declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) Subject to Article XII and all other terms and conditions of the Loan Parties shall notDocuments, each Loan Party may make Restricted Payments to any other Loan Party;
(b) each Subsidiary may make Restricted Payments to any Loan Party and shall not permit any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution the type of any nature (whether in cash, property, securities or otherwise) on account of or Equity Interest in respect of its Equity Interests, including any sinking fund or similar deposit, or on account of the purchase, redemption, retirement, cancellation, termination or acquisition of its Equity Interests (or warrants, options or rights therefor) (any of the foregoing which such Restricted Payment is being referred to as a “Restricted Payment”), except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, made;
(c) the Borrower Parent may declare and make Restricted Payments pursuant to and in accordance with stock option plans dividend payments or other benefit plans for management distributions payable solely in the common stock or employees other common Equity Interests of the Borrower and its Subsidiaries and Parent;
(d) the Borrower and its Subsidiaries Parent may make any convert Parent Notes into or otherwise acquire Parent Notes solely in exchange for common stock or other Restricted Payment (including, for the avoidance of doubt, any repurchase of common Equity Interests of the Borrower pursuant to Parent;
(e) Reserved.
(f) the Specified Share Repurchase Program) so long as immediately prior to and after giving effect (including giving effect Parent may pay accrued interest on a pro forma basis) to such Restricted Payment the Parent Notes in accordance with the terms thereof; provided that, (i) no Default or Event of Default exists under clause (a) or (l) of Section 9.1 shall have occurred and be continuing or would result therefrom and therefrom, (ii) if a Default or Event of Default under any other clause of Section 9.1 has occurred and is continuing or would result therefrom, the Administrative Agent, at the direction of the Required Lenders, has not delivered written notice to the Borrower is that the Required Lenders have elected in their sole discretion to prohibit such payments, (iii) such Material Agreements have not been modified in a manner prohibited by Section 7.16, and (iv) after giving effect to such payment, the Loan Parties are in pro forma compliance with the financial covenants set forth in Sections 6.14 Article VIII, calculated on a Pro Forma Basis as of the last day of the most recent fiscal quarter of the Parent for which financial statements have been delivered;
(g) the Parent may purchase, redeem or otherwise acquire Existing Parent Notes for cash or Cash Equivalents paid concurrent with such acquisition; provided that, (i) no Default or Event of Default shall have occurred and 6.15be continuing or would result therefrom, (ii) after giving effect to such acquisition, the Loan Parties are in pro forma compliance with the covenants set forth in Article VIII, calculated on a Pro Forma Basis as of the last day of the fiscal quarter of the Parent for which financial statements have been delivered, (iii) the consideration paid by any Loan Party or any Subsidiary of any Loan Party in connection with any such acquisition shall not exceed a five (5) percent premium on the Parent Notes so acquired, and (iv) immediately prior to and after giving effect to such acquisition, (1) the Liquidity Balance shall not be less than $20,000,000; and (2) the average Liquidity Balance for the trailing thirty (30) day period ending on the date of such acquisition (and after giving effect thereto) shall not be less than $20,000,000; and
(h) the Parent may declare or pay cash dividends to its stockholders; provided that, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) after giving effect to such dividend, the Loan Parties are in pro forma compliance with the covenants set forth in Article VIII, calculated on a Pro Forma Basis as of the last day of the fiscal quarter of the Parent for which financial statements have been delivered, (iii) the Borrower shall have provided to the Administrative Agent a certificate of a Compliance Officer of the Borrower (supported by reasonably detailed calculations) certifying that the Net Total Leverage Ratio immediately after giving effect to such dividend, measured on a Pro Forma Basis as of the last day of the most recent fiscal quarter for which financial statements have been delivered to the Administrative Agent is not greater than 2.75:1.00, and (iv) immediately prior to and after giving effect to such payments, (1) the Liquidity Balance shall not be less than $20,000,000; and (2) the average Liquidity Balance for the trailing thirty (30) day period ending on the date of such payment (and after giving effect thereto) shall not be less than $20,000,000.
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Sources: Second Lien Credit Agreement (Alaska Communications Systems Group Inc)