Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, a "RESTRICTED PAYMENT"); PROVIDED that: (a) Holdings or any Subsidiary may pay dividends in shares of its own Capital Stock; (b) any Subsidiary may pay cash dividends to the Borrower or another Subsidiary that is a Credit Party and, so long as no Default or Event of Default has occurred or is continuing, to other equity holders of such Subsidiary on a pro rata basis. (c) so long as no Event of Default exists, the Borrower may make payments in the amounts and at the rates specified in the Management Agreement; (d) the Borrower may make payments to Holdings, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum; (e) for so long as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Holdings or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower; (f) if no Event of Default shall exist or would occur after giving effect thereto, any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Effective Date; PROVIDED, that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding fiscal year; (g) the Borrower may repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section. (h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities; (i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (including, without limitation, payments in respect of Earnouts) to the extent contemplated by the Acquisition Documents; (j) Holdings and the Borrower may make Restricted Payments in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stock. (k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Sources: Credit Agreement (Restaurant Co)
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a "RESTRICTED PAYMENT")Material Adverse Effect; PROVIDED provided that:
(a) Holdings the US Borrower or any Subsidiary may pay dividends in shares of its own Capital Stock;
(b) any Subsidiary may pay cash dividends to the Borrower or another Subsidiary that is a Credit Party and, so long as no Default or Event of Default has shall have occurred or is continuingand be continuing both before and after giving effect to such payment of cash dividends, to other equity holders the US Borrower may pay cash dividends; provided that each payment of cash dividends must be made in compliance with the following criteria:
(i) during the period from the Closing Date through September 30, 2005, the aggregate amount of such Subsidiary on a pro rata basis.payments of cash dividends may not exceed $35,000,000; and
(ii) for any Fiscal Year after September 30, 2005, the aggregate amount of such payments of cash dividends may not exceed an amount equal to fifty percent (50%) of Net Income of the US Borrower and its Subsidiaries for such Fiscal Year less any share repurchases made during such Fiscal Year as permitted per subsection (c) of this Section 10.6;
(c) so long as no Default or Event of Default existsshall have occurred and be continuing both before and after giving effect to such share repurchase, the US Borrower may make payments repurchase shares of its common stock in an amount not to exceed $250,000,000 during the amounts term of this Agreement; provided that each share repurchase must be made in compliance with the following criteria:
(i) during the period from the Closing Date through September 30, 2005, the aggregate amount of such share repurchases may not exceed $150,000,000; and
(ii) for any Fiscal Year after September 30, 2005, the aggregate amount of such share repurchases may not exceed an amount equal to fifty percent (50%) of Net Income of the US Borrower and at its Subsidiaries for such Fiscal Year less any cash dividends made during such Fiscal Year as permitted per subsection (b) of this Section 10.6; provided that to the rates specified extent that, during any Fiscal Year after September 30, 2005, the basket set forth in this clause (ii) is fully utilized, the Management AgreementUS Borrower may repurchase shares of its common stock in an amount not to exceed the difference between the amount of share repurchases permitted pursuant to clause (i) above and the amount of share repurchases actually made pursuant to clause (i) (whether by virtue of (1) share repurchases made during the period from the Closing Date through September 30, 2005 or (2) additional share repurchases pursuant to this proviso in any subsequent Fiscal Year);
(d) the US Borrower may make payments repurchase (i) the June 2008 Notes and (ii) to Holdingsthe extent that the May 2007 Notes are not converted to common stock of the US Borrower, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when duethe May 2007 Notes, in an aggregate amount not each case so long as no Default or Event of Default shall have occurred and be continuing both before and after giving effect to exceed $1,000,000 per annumsuch repurchase;
(e) for so long as any Subsidiary may pay dividends to the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the US Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Holdings or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the BorrowerGuarantor;
(f) if no Event of Default shall exist or would occur after giving effect thereto, any Credit Party Subsidiary that is not a Guarantor may make pay dividends to any Restricted Payments other Subsidiary that is not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Effective Datea Guarantor; PROVIDED, that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding fiscal year;and
(g) the Borrower any Subsidiary may repurchase, redeem, or otherwise acquire for value any pay dividends to third party owners of its Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed dividends paid pursuant to constitute a Restricted Payment for purposes subsections (e) and (f) of this Section.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed Section 10.6 in an amount equal to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (including, without limitation, payments in respect of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stock.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness third party's ratable percentage of such shareholders owed to the Credit Partiesdividends.
Appears in 1 contract
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a "RESTRICTED PAYMENT")Material Adverse Effect; PROVIDED provided that:
(a) Holdings the US Borrower or any Subsidiary may pay dividends in shares of its own Capital Stock;
(b) any Subsidiary may pay cash dividends to the Borrower or another Subsidiary that is a Credit Party and, so long as no Default or Event of Default has occurred and is continuing or is continuingwould result therefrom, to other equity holders the US Borrower may declare and pay dividends in a manner consistent with the past practice of the US Borrower in an amount reasonably determined by the board of directors of the US Borrower; provided that such Subsidiary on a pro rata basis.amount shall not exceed fifty percent (50%) of Net Income for the preceding Fiscal Year;
(c) so long as no Event any Subsidiary may declare and pay dividends of Default existsany type (cash or non-cash) to the US Borrower or any other Wholly-Owned Subsidiary, provided that if the Subsidiary paying the dividend is a Subsidiary Guarantor then the recipient of the dividend must be either the US Borrower may make payments in the amounts and at the rates specified in the Management Agreement;or another Subsidiary Guarantor; and
(d) the US Borrower may make payments to Holdingsrepurchase shares of its Capital Stock, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum;
(e) for so long as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of as:
(i) no Default or Event of Default has occurred and is continuing at the amount time of the relevant tax (including any penalties and interest) that the Borrower such repurchase or would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and result therefrom; and
(ii) the net amount US Borrower and its Subsidiaries shall have demonstrated to the Administrative Agent that the Average Total Leverage Ratio (as of the relevant tax that Holdings or such Person actually owes date of the proposed share repurchase, based on the most recent financial statements delivered to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over Administrative Agent pursuant to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower;
(f) if no Event of Default shall exist or would occur Section 8.1, and, on a pro forma basis, after giving effect thereto, to such share repurchase and any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Effective Date; PROVIDED, that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding fiscal year;
(g) the Borrower may repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries incurred in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed therewith) is less than 3.00 to constitute a Restricted Payment for purposes of this Section1.00.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (including, without limitation, payments in respect of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stock.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, a "RESTRICTED PAYMENT"); PROVIDED provided that:
(a) Holdings the Borrower or any Subsidiary may pay dividends in shares of its own Capital Stock;
(b) any Subsidiary may pay cash dividends to (i) the Borrower or another (ii) any other direct or indirect Subsidiary that is a Credit Party and, of the Borrower so long as no Default or Event the proceeds of Default has occurred or is continuingsuch dividends are then subsequently paid, in the form of cash dividends, to other equity holders of such Subsidiary on a pro rata basis.the Borrower;
(c) so long as no Event of Default exists, the Borrower may make payments in the amounts and at the rates specified in the Management Agreement;
(d) repurchase, redeem, retire or otherwise acquire Capital Stock of the Borrower may make payments to Holdingsor any Affiliate of the Borrower owned by employees of the Borrower or any Subsidiary or their assignees, estates and Holdings may make payments to any direct or indirect parent heirs, at a price not in excess of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses fair market value determined in good faith by the Board of Holdings and such parents when dueDirectors of the Borrower, in an aggregate amount not to exceed $1,000,000 per annum;5,000,000 during the term of this Agreement subsequent to the Closing Date; and
(ed) for so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) for a period of thirty (30) days prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, the sum of (A) the amount of cash and Cash Equivalents of the Borrower plus (B) the excess of the Total Revolving Credit Commitment over the outstanding Revolving Credit Loans, Swingline Loans and L/C Obligations, shall be no less than $40,000,000 and (iii) prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, the Consolidated Total Leverage Ratio is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdingsless than 1.00 to 1.00, the Borrower may declare and pay dividends on its Capital Stock and make payments purchases, repurchases, redemptions, retirements and other acquisitions for value of its Capital Stock (excluding repurchases, redemptions, retirements and other acquisitions permitted under Section 11.6(c), but including repurchases, redemptions, retirements and other acquisitions permitted under Section 11.6(e)) in an aggregate amount during the term of this Agreement subsequent to Holdings and Holdings may make payments the Closing Date in an amount not to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of (iA) $25,000,000 and (B) an amount equal to the amount sum of the relevant tax fifty percent (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses50%) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount Consolidated Net Income of the relevant tax that Holdings or such Person actually owes Borrower for each Fiscal Quarter (to the appropriate taxing authority. Any Tax Payments received from the Borrower extent positive in such Fiscal Quarter) ending on and after June 30, 2012 and for which financial statements shall be paid over have been delivered pursuant to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of Section 8.1 at such Tax Payments or refunded to the Borrower;time; and
(fe) if so long as (i) no Default or Event of Default shall exist have occurred and be continuing or would occur result therefrom, (ii) prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, any the Consolidated Total Leverage Ratio is less than 2.00 to 1.00 and (iii) prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, the aggregate amount of outstanding Revolving Credit Party Loans (other than L/C Obligations) does not exceed $20,000,000, the Borrower may declare and pay dividends on its Capital Stock and make any Restricted Payments not otherwise purchases, repurchases, redemptions, retirements and other acquisitions for value of its Capital Stock (excluding repurchases, redemptions, retirements and other acquisitions permitted by this Section, under Section 11.6(c) and Section 11.6(d)) in an aggregate amount subsequent to the Closing Date not to exceed $2,000,000 5,000,000 in any fiscal year Fiscal Year using existing cash and Cash Equivalents on the balance sheet of Holdings and $10,000,000 in the aggregate after the Effective DateBorrower at such time; PROVIDED, provided that any unused portion of such amount not utilized in a previous fiscal year from any Fiscal Year may be utilized carried over solely for repurchases of the Borrower’s Capital Stock in the immediately succeeding fiscal year;
following Fiscal Year (g) the Borrower but may repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances not be carried over to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereofsubsequent Fiscal Year); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (including, without limitation, payments in respect of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stock.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital StockStock or other equity interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, Stock or other equity interests; return capital of the Borrowers to the Parent; or make any distribution of cash, property or assets among the holders of shares of its Capital Stock or make other payments or distributions to any Affiliate of any Credit Party or any of its Subsidiaries, in each case with respect to its Capital Stock or in its capacity as holder of Capital Stock, (collectively, a "RESTRICTED PAYMENT"); PROVIDED that:
provided that (a) Holdings or any Subsidiary each Credit Party may pay make dividends payable solely in shares the same class of its own Capital Stock;
Stock of such Person, (b) any Subsidiary each Credit Party may pay cash make dividends or other distributions payable to the Borrower or another Subsidiary that is a Credit Party and, so long as Borrowers and (c) if no Default or Event of Default has occurred or and is continuing, to other equity holders of such Subsidiary on continuing nor would occur as a pro rata basis.
result thereof (c) so long as no Event of Default exists, the Borrower may make payments in the amounts and at the rates specified in the Management Agreement;
(di) the Borrower Borrowers may make payments to Holdings, and Holdings may make payments to any direct or indirect parent of Holdings, the Parent to pay franchise taxes, directors fees and reasonable accounting, legal and (A) corporate overhead or administrative expenses of Holdings and such parents when due, costs in an aggregate amount not to exceed $1,000,000 per annum;
150,000 during any fiscal year and (eB) for so long amounts necessary to pay liquidated damages payable by the Parent as the Borrower is a member result of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent Registration Default (as defined in the Warrant Registration Rights Agreement dated as of Holdingsthe Closing Date among the Parent and the initial purchasers named therein and the Note Registration Rights Agreement dated as of the Closing Date among the Parent, the Borrower may make payments to Holdings subsidiary guarantors named therein and Holdings may make payments to the initial purchasers named therein) such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Holdings or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower;
(f) if no Event of Default shall exist or would occur after giving effect thereto, any Credit Party may make any Restricted Payments not otherwise permitted by this Section, amounts not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 1,000,000 in the aggregate after the Effective Date; PROVIDEDaggregate, that any amount not utilized in (ii) a previous fiscal year Credit Party may be utilized in the immediately succeeding fiscal year;
(g) the Borrower may repurchase, redeem, or otherwise acquire for value any repurchase shares of its Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition pursuant to the amounts permitted for such calendar year, the amount exercise of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made rights of first refusal granted in any preceding calendar year up to connection with a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the proposed sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments an option-holder who has exercised stock options pursuant to this clause an option plan approved by the board of directors of such Credit Party in an aggregate amount not to exceed $3,000,000 during any fiscal year, (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed to constitute iii) a Restricted Payment for purposes of this Section.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower Credit Party may make payments as required pursuant to the contracts set forth on Schedule 9.9 as in connection with effect on the Closing Date and in the amounts stated on such Schedule, (iv) the Borrowers may make distributions to the Parent to make regularly scheduled payments of interest on Permitted Parent Debt, (v) the Company may dividend or as a result distribute shares of Horizon Telcom, Inc. that it owns to the Parent and the Parent may dividend or distribute such shares of Horizon Telcom, Inc. to its shareholders and (vi) at any time prior to April 30, 2001, the Parent may redeem its Series A-1 Convertible Preferred Capital Stock in an aggregate amount not to exceed $86,000,000 pursuant to Article 4, Subpart C, Subsection F(2)(i) of the Acquisition (including, without limitation, payments in respect Parent's Amended and Restated Articles of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments in exchange for, or out Incorporation with proceeds of an initial public offering of the net Parent's Capital Stock in an aggregate amount yielding proceeds of not less than $86,000,000 in the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stockaggregate.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Sources: Credit Agreement (Horizon Personal Communications Inc)
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a "RESTRICTED PAYMENT")Material Adverse Effect; PROVIDED provided that:
(a) Holdings the US Borrower or any Subsidiary may pay dividends in shares of its own Capital Stock;
(b) any Subsidiary may pay cash dividends to the Borrower or another Subsidiary that is a Credit Party and, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the US Borrower may declare and pay quarterly dividends in a manner consistent with the past practice of the US Borrower in amounts reasonably determined by the board of directors of the US Borrower; provided that the aggregate amount of dividends declared and paid during each Fiscal Year shall not exceed fifty percent (50%) of Net Income for the Fiscal Year preceding the Fiscal Year in which such dividend is continuing, to other equity holders be declared and paid (as set forth in the audited financial statements of the US Borrower and its Subsidiaries for such preceding Fiscal Year) (the “Annual Dividend Limit”); provided further that the US Borrower may declare and pay such quarterly dividends notwithstanding that the aggregate amount of dividends paid during such Fiscal Year would be in excess of the then applicable Annual Dividend Limit so long as (i) the amount per share of such Subsidiary dividends does not exceed the amount per share paid during the most recent Fiscal Year in which the US Borrower was in compliance with the Annual Dividend Limit (without giving effect to this proviso) and (ii) the US Borrower and its Subsidiaries shall have demonstrated to the Administrative Agent that, immediately before and after giving pro forma effect to such dividends and any Indebtedness incurred in connection therewith, the Average Total Leverage Ratio (based on a pro rata basis.the most recent financial statements delivered to the Administrative Agent pursuant to Section 8.1) is less than 3.00 to 1.00;
(c) so long as no Event any Subsidiary may declare and pay dividends of Default existsany type (cash or non-cash) to the US Borrower or any other Wholly-Owned Subsidiary, provided that if the Subsidiary paying the dividend is a Subsidiary Guarantor or Subsidiary Borrower may make payments in then the amounts and at recipient of the rates specified in dividend must be either the Management Agreement;US Borrower or another Subsidiary Guarantor; and
(d) the US Borrower may make payments to Holdingsrepurchase shares of its Capital Stock, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum;
(e) for so long as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of as:
(i) no Default or Event of Default has occurred and is continuing at the amount time of the relevant tax (including any penalties and interest) that the Borrower such repurchase or would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and result therefrom; and
(ii) the net amount US Borrower and its Subsidiaries shall have demonstrated to the Administrative Agent that the Average Total Leverage Ratio (as of the relevant tax that Holdings or such Person actually owes date of the proposed share repurchase, based on the most recent financial statements delivered to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over Administrative Agent pursuant to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower;
(f) if no Event of Default shall exist or would occur Section 8.1, and, on a pro forma basis, after giving effect thereto, to such share repurchase and any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Effective Date; PROVIDED, that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding fiscal year;
(g) the Borrower may repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries incurred in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed therewith) is less than 2.50 to constitute a Restricted Payment for purposes of this Section1.00.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (including, without limitation, payments in respect of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stock.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)
Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its Capital Stockcapital stock or other equity interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, capital stock or other equity interests; return capital of the Borrowers to the Company; or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, a "RESTRICTED PAYMENT"); PROVIDED that:
(a) Holdings capital stock or make other payments or distributions to any Affiliate of the Company or any Subsidiary may pay dividends in shares of its own Capital Stock;
(b) any Subsidiary may pay cash dividends to the Borrower or another Subsidiary that is a Credit Party andSubsidiaries; provided, so long as that, if no -------- Default or Event of Default has occurred and is continuing nor would occur as a result of the following action:
(a) the Company and its Subsidiaries may make payments to Affiliates of fees or is continuingcompensation for services which are in the nature of management, corporate overhead or administrative services to other equity holders the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricing;
(b) the Company and its Subsidiaries may pay dividends (including paid-in-kind dividends) in shares of such Subsidiary on a pro rata basis.their capital stock;
(c) so long as no Event of Default exists, the any Borrower may declare and pay dividends and make payments in the amounts and at the rates specified in the Management Agreementany other distribution of cash property or assets to another Borrower;
(d) the Borrower Borrowers may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equity, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to Holdingsthe holders of the Preferred Equity or the Replacement Equity, and Holdings may make as applicable or for the payment of scheduled interest payments to any direct on the Bridge Loans or indirect parent of Holdingsthe Permanent Financing, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annumas applicable;
(e) to the extent that the Company has issued Refinancing Securities for so long as aggregate gross cash proceeds in excess of $200,000,000, in addition to the Borrower is a member of a group filing a consolidated Preferred Equity or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable that portion of the tax liabilities of such group that is attributable Replacement Equity used to Holdingsrefinance the Preferred Equity in full, the Borrower Borrowers may pay cash dividends to the Company on each dividend or their Subsidiaries (limitedinterest payment date with respect to such Refinancing Securities, in the case of Holdingsprovided, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of that (i) the -------- aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the relevant tax difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (including any penalties and interestif such Net Cash Proceeds are less than $200,000,000) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount Company shall use the proceeds of such dividends solely for the relevant tax that Holdings or such Person actually owes payment of scheduled dividend and interest payments to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt holders of such Tax Payments or refunded to the Borrower;Refinancing Securities; and
(f) if the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) no Event of Default shall exist has occurred and is continuing hereunder at the time of such repurchase or would occur after giving effect thereto, any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Effective Date; PROVIDED, that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding fiscal year;
(g) the Borrower may repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities thereto and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrantsaggregate amount paid, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (includingproposed to be paid, without limitation, payments in respect of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and Company with respect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the Borrower may make Restricted Payments in exchange fordate hereof, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stockdoes not exceed $2,000,000.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stockcapital stock or any other ownership interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stockcapital stock or other ownership interests, or make any distribution of cash, property or assets among the holders of shares of its Capital Stockcapital stock or other ownership interests, (collectively, a "RESTRICTED PAYMENT")or make any change in its capital structure; PROVIDED provided that:
(a) Holdings any Borrower or any Subsidiary may pay dividends in shares of its own Capital Stockcapital stock;
(b) any Subsidiary may pay cash dividends to the a Borrower;
(c) any Borrower or another any Subsidiary may pay any other dividends or distributions not otherwise permitted by this Section 11.6; provided that is a Credit Party and, so long as (i) the aggregate of all dividends and distributions permitted by this paragraph (c) during any Fiscal Year shall not exceed the maximum amount set forth below in the table below opposite the applicable Leverage Ratio and (ii) no Default or Event of Default has shall have occurred and be continuing both before and after giving effect to such dividends and distributions under this paragraph (c): Greater than or is continuingequal to 3.50 to 1.00 $100,000,000 minus the aggregate amount used to purchase, redeem, retire or otherwise acquire, directly or indirectly shares of its capital stock pursuant to other equity holders Section 11.6(d) during such Fiscal Year Less than 3.50 to 1.00 5% of the Net Worth of such Borrower or such Subsidiary on a pro rata basis.
for such Fiscal Year No Default or Event of Default shall be deemed to arise under this paragraph (c) as a result of an increase in the Leverage Ratio (resulting in a corresponding decrease in the maximum permitted dividend and distribution amount) with respect to the payment of any dividend or distribution actually paid during any prior Fiscal Year(s) as a result of such change in Leverage Ratio, so long as no Event of Default exists, the Borrower may make payments in the amounts and at the rates specified time such dividend or other distribution was paid, it was permitted in the Management Agreement;accordance with this Section 11.6; and
(d) the Borrower Company may make payments to Holdingspurchase, and Holdings may make payments redeem, retire or otherwise acquire, directly or indirectly, shares of its capital stock (any such purchase, redemption, retirement or acquisition under this paragraph (d), a “Restricted Payment”); provided that, with respect to any direct or indirect parent Restricted Payment, (i) the maximum amount of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses all Restricted Payments made during any period of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum;
twelve (e12) for so long consecutive months ending as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities date of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments Restricted Payment shall not exceed the lesser of applicable amount set forth below (i) the amount of the relevant tax (including any penalties it being agreed and interest) acknowledged by all parties that the Borrower would owe if Leverage Ratio shall be determined on the Borrower were filing a separate tax return (or a separate consolidated or combined return date of such Restricted Payment after giving pro forma effect to any Debt incurred in connection with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating lossesRestricted Payment) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Holdings no Default or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower;
(f) if no Event of Default shall exist or would occur have occurred and be continuing both before and after giving effect thereto, any Credit Party may make any to such Restricted Payments not otherwise permitted by this Section, not Payment. Greater than or equal to exceed 3.50 to 1.00 $2,000,000 in any fiscal year of Holdings and $10,000,000 in 100,000,000 minus the aggregate after the Effective Date; PROVIDED, that any amount not utilized paid in a previous fiscal year may be utilized in the immediately succeeding fiscal year;
(grespect of dividends and distributions permitted under Section 11.6(c) the Borrower may repurchase, redeem, during such Fiscal Year Less than 3.50 to 1.00 $125,000,000 No Default or otherwise acquire for value any Capital Stock Event of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not Default shall be deemed to constitute a Restricted Payment for purposes of arise under this Section.
paragraph (hd) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of an increase in the Acquisition Leverage Ratio (includingresulting in a corresponding decrease in the maximum permitted capital stock purchases, without limitationredemptions, payments retirements or other acquisitions) with respect to any such purchase, redemption, retirement or other acquisition actually consummated prior to such change in respect Leverage Ratio, so long as at the time such purchase, redemption, retirement or other acquisition of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments capital stock was paid, it was permitted in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stockaccordance with this Section 11.6.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Sources: Credit Agreement (Belk Inc)
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stockcapital stock or other equity interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, capital stock or other equity interests; return capital of the Borrowers to the Company; or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, a "RESTRICTED PAYMENT")capital stock or make other payments or distributions to any Affiliate of the Company or any of its Subsidiaries; PROVIDED that:
(a) Holdings or any Subsidiary may pay dividends in shares of its own Capital Stock;
(b) any Subsidiary may pay cash dividends to the Borrower or another Subsidiary that is a Credit Party and, so long as if no Default or Event of Default has occurred and is continuing nor would occur as a result of the following action:
(a) the Company and its Subsidiaries may make payments to Affiliates of fees or is continuingcompensation for services which are in the nature of management, corporate overhead or administrative services to other equity holders the extent such payments are expressly reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricing; PROVIDED, that no such payments may be made without the prior written consent of the Required Lenders if the aggregate amount of all such Subsidiary on a pro rata basis.payments exceeds $500,000 per annum;
(b) the Company and its Subsidiaries may pay dividends (including paid-in-kind dividends) in shares of their capital stock;
(c) so long as no Event of Default exists, the any Borrower may declare and pay dividends and make payments in the amounts any other distribution of cash property or assets to another Borrower and at the rates specified in the Management Agreement;any Wholly-Owned Subsidiary of any Borrower may pay dividends and make other distributions of cash, property or assets to any Borrower or any Wholly-Owned Subsidiary of a Borrower; and
(d) the Borrower Borrowers may pay cash dividends to the Company on each date on which cash interest is due with respect to the Bridge Loans in an amount equal to the interest payment due on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash interest payments to Holdings, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum;
(e) for so long as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of such Debt to the tax liabilities of such group holders thereof to the extent allowed under this Agreement); PROVIDED that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of (i) the amount Company and the Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) immediately prior to the making of such payment, no Default has occurred and is continuing and (iii) the relevant tax Company shall use the proceeds of such dividends solely for the payment of scheduled cash interest payments due on the Bridge Loans; and PROVIDED FURTHER that (including i) prior to the payment in full of all principal and interest outstanding under the Term D Loan Facility, the Required Term D Lenders can, by notice to the Company at any penalties and interest) that time, block the Borrower would owe if payment of cash dividends by the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members Borrowers to the Company for one period of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years 180 days and (ii) the net amount of the relevant tax that Holdings or such Person actually owes in any event no cash dividends may be paid by any Borrower to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower;
(f) Company if no Event of a Default shall exist or would occur after giving effect thereto, any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings has occurred and $10,000,000 in the aggregate after the Effective Dateis continuing; PROVIDED, that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding fiscal year;
(g) the Borrower may repurchaseHOWEVER, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to dividend block under this clause (gii); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (including, without limitation, payments if in respect of Earnoutsnon-payment Defaults, shall be for a period of not more than 180 days from the date the Company is notified in writing of such non-payment Default (and any subsequent 180 day dividend block in respect of non-payment Defaults may not be made until 360 days have elapsed since receipt of the aforementioned notice) and no non-payment Default that existed or was continuing on the date of delivery of the aforementioned notice to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments in exchange forAdministrative Agent shall be, or out be made, the basis for a subsequent dividend block, unless such Default has been cured or waived for a period of the net proceeds of the substantially concurrent sale (other not less than to a Subsidiary) of, other Capital Stock180 days.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, (collectively, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a "RESTRICTED PAYMENT")Material Adverse Effect; PROVIDED provided that:
(a) Holdings a. the Borrower or any Subsidiary may pay dividends in shares of its own Capital Stock;
(b) any Subsidiary may pay cash dividends to the Borrower or another Subsidiary that is a Credit Party and, b. so long as no Default or Event of Default has occurred and is continuing or is continuing, to other equity holders of such Subsidiary on a pro rata basis.
(c) so long as no Event of Default existswould result therefrom, the Borrower may make payments declare and pay quarterly dividends in a manner consistent with the past practice of the Borrower in amounts and at reasonably determined by the rates specified in board of directors of the Management Agreement;
(d) Borrower; provided that the Borrower may make payments to Holdings, declare and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum;
(e) for quarterly dividends so long as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of (i) the amount per share of such dividends is not greater than the relevant tax (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members most recently publicly announced amount of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years dividends per share and (ii) the net amount Borrower and its Subsidiaries shall have demonstrated to the Lender that, immediately before and after giving effect to such dividends and any Indebtedness incurred in connection therewith on a Pro Forma Basis, the Average Total Leverage Ratio (based on the most recent financial statements delivered to the Lender pursuant to Section 6.01) is less than 3.25 to 1.00;
c. any Subsidiary may declare and pay dividends of any type (cash or non-cash) to the Borrower or any other Wholly-Owned Subsidiary, provided that if the Subsidiary paying the dividend is a Guarantor or a Revolving Subsidiary Borrower then the recipient of the relevant tax that Holdings or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from dividend must be either the Borrower shall be paid over to or another Guarantor; and
d. the appropriate taxing authority within 30 days Borrower may repurchase shares of Holdings' its Capital Stock, so long as:
i. no Default or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower;
(f) if no Event of Default shall exist has occurred and is continuing at the time of such repurchase or would occur result therefrom; and
ii. the Borrower and its Subsidiaries shall have demonstrated to the Lender that the Average Total Leverage Ratio (as of the date of the proposed share repurchase, based on the most recent financial statements delivered to the Lender pursuant to Section 6.01, and, on a Pro Forma Basis, after giving effect thereto, to such share repurchase and any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Effective Date; PROVIDED, that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding fiscal year;
(g) the Borrower may repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of the Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries incurred in connection with the repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed therewith) is less than 3.25 to constitute a Restricted Payment for purposes of this Section1.00.
(h) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(i) Holdings and the Borrower may make payments in connection with or as a result of the Acquisition (including, without limitation, payments in respect of Earnouts) to the extent contemplated by the Acquisition Documents;
(j) Holdings and the Borrower may make Restricted Payments in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other Capital Stock.
(k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)