Restricted Payments, etc. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (ii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person; (iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests; (iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and (v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Sources: Credit Agreement (Inphonic Inc)
Restricted Payments, etc. Declare or make, directly or indirectly, (a) The Borrower will not make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefromother than:
(i) each Subsidiary may make Restricted Payments dividend payments needed to pay the Borrowertax liability and legal, any Subsidiaries accounting and other professional fees and expenses of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;Managing General Partner; and
(ii) the Borrower provided that (A) no Default exists, both immediately before and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, Payment and (B) the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases pro forma ratio of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries Coverage Test is greater than 2.50:1.00 for the period of four Fiscal Quarters immediately preceding fiscal year; and
(v) with the approval date of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, quarterly Restricted Payments in an aggregate amount not to exceed Available Cash in the preceding Fiscal Quarter; provided that so long as the aggregate amount of such payments does not exceed (1) $5,200,000 for Restricted Payments made during any Fiscal Quarter ending March 31st or September 30th or (2) $7,550,000 for Restricted Payments made during any Fiscal Quarter ending June 30th or December 31st, the pro forma ratio of the Coverage Test for the period of four Fiscal Quarters immediately preceding the date of such Restricted Payment shall be greater than 2.00:1.00. Upon satisfaction of the Coverage Test and subsequent declaration by the Borrower, Restricted Payments must be made within 60 days and if the Restricted Payment would have been permitted as of the date of such declaration, such Restricted Payment shall be permitted if made during such 60 day period.
(b) The Borrower will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to (1) pay dividends or make any other distributions on or in respect of its Capital Stock, or pay any indebtedness owed to the Borrower, (2) make loans or advances to the Borrower may make Restricted Payments consisting of the repurchase or (3) transfer any of its common stock; provided, that the aggregate amounts spent on repurchases of properties or assets to the Borrower’s common stock permitted , except for such encumbrances or restrictions existing under or by this Section 7.06(v) when aggregated reason of customary non-assignment provisions in any lease governing a leasehold interest or other contract entered into in the ordinary course of business consistent with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearpast practices.
Appears in 1 contract
Restricted Payments, etc. Declare or make, directly or indirectly, (a) The Borrower will not make any Restricted Payment, or incur any obligation (contingent or otherwise) other than dividend payments needed to do sopay the tax liability and legal, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred accounting and be continuing at other professional fees and expenses of the time of any action described below or would result therefrom:
Managing General Partner if (i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries there exists a Default or an Event of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make dividend payments Default or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment a Default or an Event of Default would exist, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending pro forma ratio of the Coverage Test is less than 2.00 if prior to December 31, 20071997, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries 2.25 if thereafter but prior to December 31, 1998, or 2.50 thereafter, for the period of four Fiscal Quarters immediately preceding fiscal year; and
(v) with the approval date of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment. Other than this restriction, the Borrower may make quarterly Restricted Payments consisting in an amount not to exceed Available Cash in the preceding Fiscal Quarter. Upon satisfaction of the repurchase of its common stock; providedCoverage Test and subsequent declaration by the Borrower, that Restricted Payments must be made within 60 days and if the aggregate amounts spent on repurchases payment would have been permitted as of the Borrower’s common stock permitted by this Section 7.06(vdate such declaration, such payment shall be remitted if made during such 60 day period. Available Cash shall exclude without duplication (x) when aggregated with redemptions or repurchases made pursuant in each Fiscal Quarter a reserve equal to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, at least 50% of the Excess Cash Flow aggregate amount of all interest payments to be made in respect of the Working Capital Loans in respect of all Indebtedness of the Borrower and its the Restricted Subsidiaries for upon which interest is due semiannually or less frequently to be made in the next Fiscal Quarter (assuming, in the case of Indebtedness bearing interest at fluctuating interest rates which cannot be determined in advance, that the interest rate in effect on the last Business Day of the immediately preceding fiscal yearFiscal Quarter will remain in effect until such Indebtedness in due to be paid), (y) with respect to Acquisition Loans (as of the Acquisition Loan Conversion Date) and any Indebtedness secured equally and ratably with the Notes of which principal is payable annually, in the third Fiscal Quarter immediately preceding each Fiscal Quarter in which any scheduled principal payment is due with respect to such Acquisition Loans and other Indebtedness (a "principal payment quarter"), a reserve equal to at least 25% of the aggregate amount of all principal to be paid in respect of such Acquisition Loans and other such Indebtedness secured equally and ratably with the Notes in such principal payment quarter; in the second Fiscal Quarter immediately preceding a principal payment quarter, a reserve equal to at least 50% of the aggregate 100 amount of all principal to be paid in respect of such Acquisition Loans and other such Indebtedness in such principal payment quarter; and in the Fiscal Quarter immediately preceding a principal payment quarter, a reserve equal to at least 75% of the aggregate amount of all principal to be paid in respect of such Acquisition Loans and other such Indebtedness in such principal payment quarter, and (z) with respect to any other Indebtedness secured equally and ratably with the Notes of which principal is payable semiannually, in each Fiscal Quarter which immediately precedes a Fiscal Quarter in which principal is payable in respect of such Indebtedness a reserve equal to at least 50% of the aggregate amount of all principal to be paid in respect of such Indebtedness in the next Fiscal Quarter. Such reserve for principal amounts to be paid shall be reduced by the aggregate principal amount of all binding, irrevocable letters of credit established to refinance such principal.
(b) The Borrower will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of such Restricted Subsidiary to (a) pay dividends or make any other distributions on or in respect of its capital stock, or pay any indebtedness owed to the Borrower or any Restricted Subsidiary, (b) make loans or advances to the Borrower or any Restricted Subsidiary or (c) transfer any of its properties or assets to the Borrower or any Restricted Subsidiary, except for such encumbrances or restrictions existing under or by reason of customary non-assignment provisions in any lease governing a leasehold interest or other contract entered into in the ordinary course of business consistent with past practices.
Appears in 1 contract
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, other than (a) Restricted Payments made by Subsidiaries to the Borrower or incur any obligation wholly owned Subsidiaries, (contingent b) cashless exercises of stock options, (c) cash payments by Borrower in lieu of the issuance of fractional shares upon exercise or otherwiseconversion of Equity Equivalents, (d) to do soRestricted Payments in connection with the share repurchases required by the employee stock ownership programs or required under employee agreements, or issue or sell any Equity Interests or accept any capital contributions, except that, (e) so long as no Specified Default shall have has occurred and be is continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower both before and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officersis in compliance with Section 7.2.4 for such Measurement Period, employees and directors of any Group Company (or their estatesRestricted Payments not otherwise permitted by this Section 7.2.6 in an aggregate amount, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that together with the aggregate amounts spent on redemptions amount of Indebtedness under any Pro Forma Unsecured Indebtedness Documents, the 2014 Senior Note Documents, the 2016 Senior Note Documents or repurchases made the 2020 Senior Note Documents paid or prepaid in any Fiscal Year pursuant to this clause (1)(B) of the proviso to Section 7.06(iv7.2.8(a), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not to exceed the sum of (i) $50,000,000 150,000,000 in any Fiscal Year plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Available Retained Excess Cash Flow of and (f) so long as no Specified Default has occurred and is continuing or would result therefrom, Restricted Payments not otherwise permitted by this Section 7.2.6 to the Borrower extent that, both before and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall Leverage Ratio for such Measurement Period would not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year3.00:1.00.
Appears in 1 contract
Sources: Credit Agreement (Hanesbrands Inc.)
Restricted Payments, etc. Declare (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any make a Restricted Payment, or incur make any obligation deposit for any Restricted Payment; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments if (contingent x) no Default hereunder or otherwiseany default under other Total Debt exists immediately before and after giving effect to the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to do sobe less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in the case of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transfer.
(b) Notwithstanding the foregoing, however, the Borrower or issue any of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or sell any Equity Interests or accept any capital contributions, except that, (ii) so long as no Default shall have occurred exists immediately before and be continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwiseas a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate amounts spent Fair Market Value of all Contributed Property contributed on redemptions or repurchases prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this Section 7.06(ivclause (b)(ii), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Restricted Payments, etc. Declare Unless (x) the Leverage Ratio shall be equal to or makeless than 3.50:1, directly as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or indirectly(y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, or incur any obligation other than:
(contingent or otherwisea) Restricted Payments made by Subsidiaries (i) to do sothe Borrower, or issue to Wholly Owned Subsidiaries or sell (ii) proportionately to all holders of Capital Securities, including to KCS Minority Interest Subsidiaries;
(b) dividends or distributions made by the Borrower payable solely in Capital Securities of the Borrower (other than Disqualified Stock), including, without limitation, pursuant to any Equity Interests conversion of any Dividend Notes into Capital Securities of the Borrower (other than Disqualified Stock);
(c) the exchange of Capital Securities of the Borrower for other Capital Securities of the Borrower (other than Disqualified Stock);
(d) payments or accept distributions to dissenting stockholders pursuant to applicable law or in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets permitted by the terms of this Agreement;
(e) cash payments in lieu of the issuance of fractional shares; and
(f) Restricted Payments by the Borrower; provided, that (i) the amount of such Restricted Payments shall not exceed an aggregate amount equal to $125,000,000 plus (1) 50% of Net Income accrued on a cumulative basis during the period (deemed for purposes of this Section to be one accounting period) commencing on October 1, 2011 and ending on the last day of the Fiscal Quarter immediately preceding the date of declaration of such Restricted Payment (which amount shall not be less than zero) (the “Restricted Payment Accrual Termination Date”) plus (2) an amount equal to the Dollar equivalent of total cash contributions to the equity capital of Borrower after the Original Effective Date resulting from the proceeds of a private placement or a public issuance of Capital Securities (other than Disqualified Stock), less the aggregate amount of (x) Investments made pursuant to Section 7.2.5(p), (y) Capital Expenditures made or committed to be made pursuant to the proviso to Section 7.2.7 and (z) Indebtedness prepaid pursuant to clause (a)(iii) of Section 7.2.16, less (3) the aggregate amount of any capital contributionsRestricted Payment declared or distributed pursuant to this Section 7.2.6(f) during the period beginning on the Original Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date (excluding, except thatfor the avoidance of doubt, so long any redemption, prepayment or defeasance of the Subject Notes or any Indebtedness incurred pursuant to Section 7.2.2(m)), less (4) the aggregate amount of any payment made during the period beginning on the Original Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date, pursuant to Section 7.2.16(a)(v), in respect of any redemption, prepayment or defeasance of Material Debt that has a scheduled maturity date later than the Final Maturity Date, less (5) the aggregate amount of any Investment made pursuant to Section 7.2.5(n) during the period beginning on the Original Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date; (ii) the Borrower shall have delivered to the Administrative Agent the applicable financial statements for the Fiscal Quarter ending on such Restricted Payment Accrual Termination Date in accordance with Section 7.1.1; and (iii) as of the time of the making of such dividend or distribution, no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Restricted Payments, etc. Declare (a) No Borrower will, nor will any Borrower permit any of its Restricted Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, unless (x) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto.
(b) Notwithstanding the foregoing, however, any Borrower or incur any obligation of its Restricted Subsidiaries may declare and make Restricted Payments
(contingent i) of cash or otherwiseCash Equivalent Investments with the amount of Capital Contributions made into the Borrowers and (without duplication) their Restricted Subsidiaries after the Effective Date; provided that (A) no Default exists immediately before and (on a pro forma basis) after giving effect to do sothe making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or
(ii) of property (other than cash or issue or sell any Equity Interests or accept any capital contributions, except thatCash Equivalent Investments), so long as no Default shall have occurred exists immediately before and be continuing at the time of any action described below or would result therefrom:
(ion a pro forma basis) each Subsidiary may make Restricted Payments after giving effect to the Borrowermaking of such Restricted Payment; provided, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which (A) if such Restricted Payment is required to be deducted from the Aggregate Property Contribution Amount pursuant to the terms of this Agreement, then such property is similar in all material respects (as reasonably determined by the Arranging Agents) to the Contributed Property (it being agreed that all Cable Systems are deemed to be similar to each other) and has a Fair Market Value (determined as of the date such Restricted Payment is made;) no greater than the Aggregate Property Contribution Amount then in effect or (B) if such Restricted Payment is required to be deducted from the Aggregate Capital Contribution Amount pursuant to the terms of this Agreement, after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00. In either case, the Borrowers shall deliver notice to the Administrative Agent setting forth as between clause (b)(i) and clause (b)(ii) where such Restricted Payment was deducted.
(iic) the Borrower The Borrowers and each Subsidiary their Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely the Closing Date Restricted Payment (and such Closing Date Restricted Payment shall not be included in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval any of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(ivcalculations set forth above), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Restricted Payments, etc. Declare Holdings and the Borrower will not, and will not permit any of their respective Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, or incur any obligation except:
(contingent or otherwisea) the Borrower may make Restricted Payments to do so, or issue or sell any Equity Interests or accept any capital contributions, except thatHoldings for the purpose of paying, so long as no Default shall have occurred all proceeds are promptly used by Holdings to pay, (i) reasonable fees for audit, legal and be continuing similar administrative services and other corporate overhead, (ii) customary fees to non-officer directors of Holdings who are not Affiliates of Holdings, (iii) out-of-pocket expenses to directors or observers of the board of directors of Holdings and (iv) taxes payable by Holdings;
(b) so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default, Holdings may (and the Borrower may make Restricted Payments to Holdings to permit Holdings to) repurchase Management Shares from any action described below or would result therefrom:Management Investor (i) with proceeds of the key-man life insurance maintained on the life of such Management Investor and (ii) with cash in an aggregate amount not exceeding $2,500,000 per year up to a maximum aggregate amount equal to $10,000,000 over the term of this Agreement; provided that to the extent the amount of cash used to make such repurchases in any Fiscal Year is less than $2,500,000, 100% of such unused amount may be carried forward to succeeding Fiscal Years and utilized to make such repurchases in such succeeding Fiscal Years;
(i) each any Subsidiary of the Borrower may make Restricted Payments to the Borrower, Borrower or any Subsidiaries Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of the Borrower that are Guarantors and any other Person that may make Restricted Payments to its shareholders generally so long as the Borrower or its Subsidiary which owns a direct Equity Interest the equity interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which Subsidiary making such Restricted Payment is being madereceives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary making such Restricted Payment);
(iid) the Borrower and each Subsidiary may declare and make dividend payments so long as no Default then exists or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Paymentwould result therefrom, the Borrower may make Restricted Payments consisting to Holdings at the times, and in the amounts, necessary to enable Holdings to make any regularly scheduled interest or principal payments that are due and payable on any Permitted Seller Notes or in respect of any Qualifying Subordinated Debt to the repurchase of its common stock; provided, extent that the aggregate amounts spent on repurchases of the Borrower’s common stock such payments are permitted by this Section 7.06(v) when aggregated with redemptions or repurchases to be made pursuant to Section 7.06(iv), shall not exceed 7.2.8;
(e) repurchases of Capital Stock of Holdings deemed to occur upon the sum exercise of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% stock options if such Capital Stock represents a portion of the Excess Cash Flow exercise price thereof and so long as no cash is paid or distributed by Holdings or any of the Borrower and its Subsidiaries for in connection therewith; and
(f) the immediately preceding fiscal yearTender Offer and the Merger shall be permitted.
Appears in 1 contract
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of their respective Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, or incur any obligation except:
(contingent or otherwisea) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred and be continuing at the time of such purchase (and after giving effect thereto) there shall exist no Default, the Borrower may repurchase Borrower Common Stock from any action Management Investor (i) with proceeds of the key-man life insurance maintained on the life of such Management Investor, (ii) with cash in an aggregate amount not exceeding $3,000,000 per year or (iii) with Indebtedness permitted in accordance with clause (o) of Section 7.2.2;
(b) so long as at the time of such payment (and after giving effect thereto) there shall exist no Payment Default or Event of Default described below in Section 8.1.3 or would result therefrom:8.1.9, the Borrower may pay fees to Harvest Partners and its respective Affiliates in respect of management services rendered by them to the Borrower and its Subsidiaries 84 118 to the extent the aggregate amount of such fees in any Fiscal Year (or portion thereof) does not exceed $1,250,000 per year, and so long as such fees accrue ratably throughout such year and are payable in advance or semi-annually;
(i) each any Subsidiary of the Borrower may make Restricted Payments to the Borrower, Borrower or any Subsidiaries Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of the Borrower that are Guarantors and any other Person that may make Restricted Payments to its shareholders generally so long as the Borrower or its Subsidiary which owns a direct Equity Interest the equity interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which Subsidiary making such Restricted Payment is being madereceives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary making such Restricted Payment);
(d) repurchases of Capital Stock of the Borrower deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof and so long as no cash is paid or distributed by the Borrower or any of its Subsidiaries in connection therewith;
(e) so long as (i) at the time of such Restricted Payment there shall exist no Default or Event of Default, (ii) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding such Restricted Payment (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1.1) giving pro forma effect to such Restricted Payment and evidencing compliance with the covenants set forth in Section 7.2.4 and a pro forma Leverage Ratio of not more than 2.00:1.0, in each Subsidiary may declare and make dividend payments or other distributions payable solely in case, as of the common stock or other common Equity Interests (but not Debt Equivalents) last day of such Person;
period, and (iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment at least $25,000,000 of the Revolving Loan Commitment Amount would be unused, the Borrower may redeem or repurchase Equity Interests make Restricted Payments that, when aggregated with (or Equity EquivalentsA) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon all Restricted Payments previously made after the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made Effective Date pursuant to this Section 7.06(iv7.2.6(e) and (B) without duplication payments of principal of, and premium and interest on, Subordinated Debt previously made after the Effective Date pursuant to Section 7.2.8(a)(i)(y), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall do not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50an amount equal to 25% of the Excess Cash Flow cumulative positive Net Income of the Borrower and its Subsidiaries for the immediately preceding fiscal yearperiod from January 1, 2001 through the end of the most recent Fiscal Quarter or Fiscal Year for which the Borrower has delivered the financial statements required pursuant to Section 7.1.1(a) or (b); and
(vf) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), Transactions shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearbe permitted.
Appears in 1 contract
Sources: Assignment, Amendment and Restatement Agreement (Global Power Equipment Group Inc/)
Restricted Payments, etc. Declare No Borrower will or makewill permit any of its Subsidiaries to, directly declare or indirectlymake a Restricted Payment, or make any deposit for any Restricted Payment, other than the following:
(a) Restricted Payments (i) made by Subsidiaries of a Borrower or incur a Subsidiary Guarantor to any obligation Borrower or any Subsidiary Guarantor, (contingent ii) made by Subsidiaries of the Parent which are not Borrowers or otherwiseSubsidiary Guarantors to other Subsidiaries of the Parent which are not Borrowers or Subsidiary Guarantors or (iii) in the case of Subsidiaries which are not wholly-owned, made by such Subsidiaries (A) on a pro rata basis to do soeach holder of Capital Securities of the applicable class of such Subsidiary or (B) in connection with non-pro rata redemptions of its Capital Securities (other than Capital Securities held by the Borrowers and their respective Subsidiaries); PROVIDED that the aggregate amount of Restricted Payments made pursuant to this CLAUSE (B) by Subsidiaries which are not Borrowers or Subsidiary Guarantors, when taken together with the aggregate amount of all Investments made in Subsidiaries which are not Borrowers or issue or sell Subsidiary Guarantors in accordance with SECTION 7.2.5(f) hereof, shall not exceed $2,500,000 over the term of this Agreement;
(b) Restricted Payments made by VHC to the Parent to the extent necessary to enable the Parent to (i) pay its overhead expenses (including fees in respect of advisory services) in an amount not to exceed $500,000 (which amount shall include not more than $250,000 in respect of advisory services) in the aggregate in any Equity Interests or accept any capital contributionsFiscal Year, except that(ii) make payments in respect of taxes, (iii) so long as (A) no Default shall have occurred and be continuing at on the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which date such Restricted Payment is being declared or to be made;
(ii) , nor would a Default result from the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) making of such Person;
Restricted Payment, (iiiB) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to the making of such Restricted PaymentPayment VHC shall be in PRO FORMA compliance with the covenants set forth in SECTION 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1, and (C) an Authorized Officer of VHC shall have delivered a certificate to the Borrower may redeem Agents in form and substance satisfactory to the Agents (including a calculation of VHC's compliance with the covenants set forth in SECTION 7.2.4) certifying as to the accuracy of CLAUSES (b)(iii)(A) and (b)(iii)(B) above, purchase, redeem, acquire or repurchase Equity Interests (otherwise retire for value shares of Capital Securities of the Parent held by directors, officers or Equity Equivalents) from officersemployees of the Parent or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees and directors of any Group Company (or their estates or beneficiaries under their estates), spouses or former spouses) in all cases only upon the death, permanent disability, retirement or retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such Person shares of Capital Securities, options, related rights or otherwisesimilar securities were issued (collectively referred to as a "REDEMPTION") in an aggregate amount, in the case of this CLAUSE (b)(iii), not to exceed $1,000,000 in any Fiscal Year; providedPROVIDED, that VHC can carry forward to each succeeding Fiscal Year the aggregate amounts spent on redemptions or repurchases amount of Restricted Payments permitted (but not made) pursuant to this CLAUSE (b)(iii) in prior Fiscal Years, with up to a maximum amount of $5,000,000 over the term of this Agreement of the Restricted Payments permitted to be made pursuant to this Section 7.06(iv), when aggregated with repurchases CLAUSE (b)(iii) and (iv) repurchase the shares of common stock of the Borrower’s common stock permitted Parent held by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and related trusts as of the Excess Cash Flow Closing Date for an aggregate purchase price not to exceed $2,000,000 and, in connection therewith, forgive some or all of the Borrower and its Subsidiaries for the immediately preceding fiscal year; andloans made to ▇▇. ▇▇▇▇▇▇▇▇ and/or such trusts in connection with their purchase of such shares;
(vc) Restricted Payments made by VHC to the Parent in an aggregate amount not exceeding the aggregate amount of capital contributions made by the Parent to VHC with the approval Net Equity Proceeds, net of the board amount of directors of the Borrower such capital contributions received by VHC and if the Borrower is Solvent after giving effect used for a Permitted Purpose or which are required to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated be used to prepay Loans in accordance with redemptions or repurchases made pursuant to Section 7.06(ivSECTION 3.1.1(c)(i), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Restricted Payments, etc. Declare Holdings and the Borrower will not, and will not permit any of their respective Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, or incur any obligation except:
(contingent or otherwisea) the Borrower may make Restricted Payments to do so, or issue or sell any Equity Interests or accept any capital contributions, except thatHoldings for the purpose of paying, so long as no Default shall have occurred all proceeds are promptly used by Holdings to pay, (i) reasonable fees for audit, legal and be continuing similar administrative services and other corporate overhead, (ii) customary fees to non-officer directors of Holdings who are not Affiliates of Holdings, (iii) out-of-pocket expenses to directors or observers of the board of directors of Holdings and (iv) taxes payable by Holdings;
(b) so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default, Holdings may (and the Borrower may make Restricted Payments to Holdings to permit Holdings to) repurchase Management Shares from any action described below Management Investor or would result therefrom:repay (or make interest payments on) Indebtedness incurred
(i) each with proceeds of the key-man life insurance maintained on the life of such Management Investor and (ii) with cash in an aggregate amount not exceeding $2,500,000 per year up to a maximum aggregate amount equal to $10,000,000 over the term of this Agreement; provided that to the extent the amount of cash used to make such repurchases (or repayments and payments of such Indebtedness) in any Fiscal Year is less than $2,500,000, 100% of such unused amount may be carried forward to succeeding Fiscal Years and utilized to make such repurchases (or repayments and payments of such Indebtedness) in such succeeding Fiscal Years (up to such maximum amount);
(i) any Subsidiary of the Borrower may make Restricted Payments to the Borrower, Borrower or any Subsidiaries wholly-owned Subsidiary of the Borrower that are Guarantors which is the parent of such Subsidiary and (ii) any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings non-wholly-owned Subsidiary of the type of Equity Interest Borrower may make Restricted Payments to its shareholders generally so long as the Borrower or its Subsidiary which owns the equity interest in respect of which the Subsidiary making such Restricted Payment is being madereceives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary making such Restricted Payment);
(iid) the Borrower and each Subsidiary may declare and make dividend payments so long as no Default then exists or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Paymentwould result therefrom, the Borrower may make Restricted Payments consisting to Holdings at the times, and in the amounts, necessary to enable Holdings to make any regularly scheduled interest or principal payments that are due and payable on any Permitted Seller Notes or in respect of any Qualifying Subordinated Debt to the repurchase of its common stock; provided, extent that the aggregate amounts spent on repurchases of the Borrower’s common stock such payments are permitted by this Section 7.06(v) when aggregated with redemptions or repurchases to be made pursuant to Section 7.06(iv), shall not exceed 7.2.8;
(e) repurchases of Capital Stock of Holdings deemed to occur upon the sum exercise of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% stock options if such Capital Stock represents a portion of the Excess Cash Flow exercise price thereof and so long as no cash is paid or distributed by Holdings or any of the Borrower and its Subsidiaries for in connection therewith; and
(f) the immediately preceding fiscal yearTender Offer and the Merger shall be permitted.
Appears in 1 contract
Restricted Payments, etc. Declare None of the Group Companies will declare or make, directly or indirectly, pay any Restricted Payment, or incur any obligation Payments (contingent or otherwise) to do so, or issue or sell any other than Restricted Payments payable solely in Equity Interests or accept any capital contributions(exclusive of Debt Equivalents) of such Person), except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(i) each any Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower, Borrower or to any Subsidiaries Wholly-Owned Subsidiary of the Borrower that are Guarantors and any other Person that owns which is a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being madeSubsidiary Guarantor;
(ii) any non-Wholly-Owned Subsidiary of the Borrower and each may make Restricted Payments to the Borrower or to any Wholly-Owned Subsidiary may declare and make dividend payments of the Borrower which is a Subsidiary Guarantor or other distributions payable solely in the common stock or other common ratably to all holders of its outstanding Equity Interests (but not Debt Equivalents) of such PersonInterests;
(iii) the Borrower may make cash Restricted Payments to Holdings for the purpose of paying, and in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings’ counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings (including employee and compensation expenditures and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Holdings’ Investment in the Borrower and its Subsidiaries up to an aggregate amount of $100,000 for each Subsidiary may purchasefiscal year, redeem or otherwise acquire (B) the then currently due taxes payable by Parent pursuant to the Tax Sharing Agreement solely on account of the income of Holdings related to its common Equity Interests with Investment in the proceeds received from Borrower and its Subsidiaries and the substantially concurrent issue reasonable expenses of new common Equity Interestspreparing returns reflecting such taxes;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees make payments to Parent due under the Management Services Agreement to the extent such payments reflect normal compensation for services rendered by officers and directors of any Group Company (or their estates, spouses or former spouses) upon Parent and/or Orbimage in the death, permanent disability, retirement or termination ordinary course of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearbusiness; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting payments to Parent up to $6,000,000 for reimbursement of deposits made by Parent to the Seller as part of the repurchase of its common stock; provided, that aggregate purchase price under the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearAcquisition Agreement.
Appears in 1 contract
Sources: Credit Agreement (Orbimage Inc)
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, other than:
(a) Restricted Payments made by Subsidiaries to the Borrower or incur any obligation wholly-owned Subsidiaries;
(contingent or otherwiseb) Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries, (ii) to do sopay franchise taxes and other overhead expenses of Parent in an amount not to exceed $1,000,000 in any Fiscal Year and (iii) in order to permit Parent to pay Additional Interest (as defined in the Parent Notes Indenture (as defined in the Parent Guaranty)) in cash in an aggregate amount not exceeding $200,000;
(c) repurchases of Capital Securities from former employees, or issue or sell directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Equity Interests or accept any capital contributions, except Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward;
(d) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options;
(e) Restricted Payments made by the Borrower to Parent that are necessary to consummate the Transaction;
(f) other than during any Dividend Suspension Period (i) so long as no Default shall have has occurred and be is continuing, payments to Parent to (A) service cash interest payments on the Parent Notes that are due and payable or are expected to become due or payable within 10 days of such Restricted Payment, (B) fund redemptions or open market purchases of Parent Notes, or (C) fund redemptions or open market purchases of Parent's Capital Securities and (ii) so long as no Default has occurred and is continuing at the time such payment is declared and so long as no Event of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments Default has occurred and is continuing at the time such payment is made, payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according Parent to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make fund dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwiseon Parent's Capital Securities; provided, provided that the aggregate amounts spent on redemptions or repurchases made amount of all payments pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), clause (f) shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearCumulative Distributable Cash; and
(vg) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Monitoring Agreement Buyout Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, other than (a) Restricted Payments made by Subsidiaries to the Borrower or incur any obligation wholly owned Subsidiaries, (contingent b) cashless exercises of stock options, (c) cash payments by Borrower in lieu of the issuance of fractional shares upon exercise or otherwiseconversion of Equity Equivalents, (d) to do soRestricted Payments in connection with the share repurchases required by the employee stock ownership programs or required under employee agreements and, or issue or sell any Equity Interests or accept any capital contributions, except that, (e) so long as (i) no Specified Default shall have has occurred and be is continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower both before and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officersis in pro forma compliance with Section 7.2.4,7.2.4 for such Measurement Period, employees and directors of any Group Company (or their estatesRestricted Payments not otherwise permitted by this Section 7.2.6 in an aggregate amount not to exceed $75,000,000, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that together with the aggregate amounts spent on redemptions amount of Indebtedness under any Pro Forma Unsecured Indebtedness Documents, the 2014 Senior Note Documents, the 2016 Senior Note Documents or repurchases made the 2020 Senior Note Documents paid or prepaid in any Fiscal Year pursuant to clause (1)(B) of the proviso to Section 7.2.8(a), not to exceed $150,000,000 in any Fiscal Year plus Available Retained Excess Cash Flow. and (f) so long as no Specified Default has occurred and is continuing or would result therefrom, Restricted Payments not otherwise permitted by this Section 7.06(iv)7.2.6 to the extent that, when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower both before and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall Leverage Ratio for such Measurement Period would not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year3.00:1.00.
Appears in 1 contract
Sources: Credit Agreement (Hanesbrands Inc.)
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, other than:
(a) Restricted Payments made by Subsidiaries to the Borrower or incur any obligation wholly-owned Subsidiaries;
(contingent or otherwiseb) Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries, (ii) to do sopay franchise taxes and other overhead expenses of Parent in an amount not to exceed $1,000,000 in any Fiscal Year and (iii) in order to permit Parent to pay Additional Interest (as defined in the Parent Notes Indenture (as defined in the Parent Guaranty)) in cash in an aggregate amount not exceeding $200,000;
(c) repurchases of Capital Securities from former employees, or issue or sell directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Equity Interests or accept any capital contributions, except Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward;
(d) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options;
(e) Restricted Payments made by the Borrower to Parent that are necessary to consummate the Transaction;
(f) other than during any Dividend Suspension Period (i) so long as no Default shall have has occurred and be is continuing, payments to Parent to (A) service cash interest payments on the Parent Notes that are due and payable or are expected to become due or payable within 10 days of such Restricted Payment, (B) fund redemptions or open market purchases of Parent Notes, or (C) fund redemptions or open market purchases of Parent’s Capital Securities and (ii) so long as no Default has occurred and is continuing at the time such payment is declared and so long as no Event of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments Default has occurred and is continuing at the time such payment is made, payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according Parent to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make fund dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwiseon Parent’s Capital Securities; provided, provided that the aggregate amounts spent on redemptions or repurchases made amount of all payments pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), clause (f) shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearCumulative Distributable Cash; and
(vg) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Monitoring Agreement Buyout Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, or incur any obligation other than:
(contingent or otherwisea) Restricted Payments made by Subsidiaries (i) to do sothe Borrower, or issue to Wholly Owned Subsidiaries or sell (ii) proportionately to all holders of Capital Securities, including to KCS Minority Interest Subsidiaries;
(b) dividends or distributions made by the Borrower payable solely in Capital Securities of the Borrower (other than Disqualified Stock), including, without limitation, pursuant to any Equity Interests conversion of any Dividend Notes into Capital Securities of the Borrower (other than Disqualified Stock);
(c) the exchange of Capital Securities of the Borrower for other Capital Securities of the Borrower (other than Disqualified Stock);
(d) payments or accept distributions to dissenting stockholders pursuant to applicable law or in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets permitted by the terms of this Agreement;
(e) cash payments in lieu of the issuance of fractional shares; and
(f) Restricted Payments by the Borrower; provided, that (i) the amount of such Restricted Payments shall not exceed an aggregate amount equal to $125,000,000 plus (1) 50% of Net Income accrued on a cumulative basis during the period (deemed for purposes of this Section to be one accounting period) commencing on October 1, 2011 and ending on the last day of the Fiscal Quarter immediately preceding the date of declaration of such Restricted Payment (which amount shall not be less than zero) (the “Restricted Payment Accrual Termination Date”) plus (2) an amount equal to the Dollar equivalent of total cash contributions to the equity capital of Borrower after the Effective Date resulting from the proceeds of a private placement or a public issuance of Capital Securities (other than Disqualified Stock), less the aggregate amount of (x) Investments made pursuant to Section 7.2.5(p), (y) Capital Expenditures made or committed to be made pursuant to the proviso to Section 7.2.7 and (z) Indebtedness prepaid pursuant to clause (a)(iii) of Section 7.2.16, less (3) the aggregate amount of any capital contributionsRestricted Payment declared or distributed pursuant to this Section 7.2.6(f) during the period beginning on the Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date (excluding, except thatfor the avoidance of doubt, so long any redemption, prepayment or defeasance of the Subject Notes or any Indebtedness incurred pursuant to Section 7.2.2(m)), less (4) the aggregate amount of any payment made during the period beginning on the Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date, pursuant to Section 7.2.16(a)(v), in respect of any redemption, prepayment or defeasance of Material Debt that has a scheduled maturity date later than the Final Maturity Date, less (5) the aggregate amount of any Investment made pursuant to Section 7.2.5(n) during the period beginning on the Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date; (ii) the Borrower shall have delivered to the Administrative Agent the applicable financial statements for the Fiscal Quarter ending on such Restricted Payment Accrual Termination Date in accordance with Section 7.1.1; and (iii) as of the time of the making of such dividend or distribution, no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Sources: Credit Agreement (Kansas City Southern De Mexico, S.A. De C.V.)
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, other than (a) Restricted Payments made by Subsidiaries to the Borrower or incur any obligation wholly owned Subsidiaries, (contingent b) cashless exercises of stock options, (c) cash payments by Borrower in lieu of the issuance of fractional shares upon exercise or otherwiseconversion of Equity Equivalents, (d) to do soRestricted Payments in connection with the share repurchases required by the employee stock ownership programs or required under employee agreements, or issue or sell any Equity Interests or accept any capital contributions, except that, (e) so long as no Specified Default shall have has occurred and be is continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower both before and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officersis in compliance with Section 7.2.4 for such Measurement Period, employees and directors of any Group Company (or their estatesRestricted Payments not otherwise permitted by this Section 7.2.6 in an aggregate amount, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that together with the aggregate amounts spent on redemptions amount of Indebtedness under any Pro Forma Unsecured Indebtedness Documents, the 2014 Senior Note Documents, the 2016 Senior Note Documents or repurchases made the 2020 Senior Note Documents paid or prepaid in any Fiscal Year pursuant to clause (1)(B) of the proviso to Section 7.2.8(a), not to exceed $150,000,000 in any Fiscal Year plusthe Available Retained Excess Cash FlowAmount and (f) so long as no Specified Default has occurred and is continuing or would result therefrom, Restricted Payments not otherwise permitted by this Section 7.06(iv)7.2.6 to the extent that, when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower both before and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall Leverage Ratio for such Measurement Period would not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year3.00:1.00.
Appears in 1 contract
Sources: Credit Agreement (Hanesbrands Inc.)
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of their respective Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, or incur any obligation except:
(contingent or otherwisea) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred and be continuing at the time of such purchase (and after giving effect thereto) there shall exist no Default, the Borrower may repurchase Borrower Common Stock from any action Management Investor (i) with proceeds of the key-man life insurance maintained on the life of such Management Investor, (ii) with cash in an aggregate amount not exceeding $3,000,000 per year or (iii) with Indebtedness permitted in accordance with clause (o) of Section 7.2.2;
(b) so long as at the time of such payment (and after giving effect thereto) there shall exist no Payment Default or Event of Default described below in Section 8.1.3 or would result therefrom:8.1.9, the Borrower may pay fees to Harvest Partners and its respective Affiliates in respect of management services rendered by them to the Borrower and its Subsidiaries to the extent the aggregate amount of such fees in any Fiscal Year (or portion thereof) does not exceed $1,250,000 per year, and so long as such fees accrue ratably throughout such year and are payable in advance or semi-annually;
(i) each any Subsidiary of the Borrower may make Restricted Payments to the Borrower, Borrower or any Subsidiaries Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of the Borrower that are Guarantors and any other Person that may make Restricted Payments to its shareholders generally so long as the Borrower or its Subsidiary which owns a direct Equity Interest the equity interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which Subsidiary making such Restricted Payment is being madereceives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary making such Restricted Payment);
(d) repurchases of Capital Stock of the Borrower deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof and so long as no cash is paid or distributed by the Borrower or any of its Subsidiaries in connection therewith;
(e) so long as (i) at the time of such Restricted Payment there shall exist no Default or Event of Default, (ii) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding such Restricted Payment (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1.1) giving pro forma effect to such Restricted Payment and evidencing compliance with the covenants set forth in Section 7.2.4 and a pro forma Leverage Ratio of not more than 2.00:1.0, in each Subsidiary may declare and make dividend payments or other distributions payable solely in case, as of the common stock or other common Equity Interests (but not Debt Equivalents) last day of such Person;
period, and (iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment at least $25,000,000 of the Revolving Loan Commitment Amount would be unused, the Borrower may redeem or repurchase Equity Interests make Restricted Payments that, when aggregated with (or Equity EquivalentsA) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon all Restricted Payments previously made after the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made Effective Date pursuant to this Section 7.06(iv7.2.6(e) and (B) without duplication payments of principal of, and premium and interest on, Subordinated Debt previously made after the Effective Date pursuant to Section 7.2.8(a)(i)(y), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall do not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50an amount equal to 25% of the Excess Cash Flow cumulative positive Net Income of the Borrower and its Subsidiaries for the immediately preceding fiscal yearperiod from January 1, 2001 through the end of the most recent Fiscal Quarter or Fiscal Year for which the Borrower has delivered the financial statements required pursuant to Section 7.1.1(a) or (b); and
(vf) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), Transactions shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearbe permitted.
Appears in 1 contract
Sources: Credit Agreement (Global Power Equipment Group Inc/)
Restricted Payments, etc. Declare The Parent will not, and will not permit any of its Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, other than
(a) Restricted Payments made by wholly-owned Subsidiaries to the Parent or incur other wholly-owned Subsidiaries (provided that (x) with respect to any obligation Restricted Payment referenced in clause (contingent i) of the definition thereof, if any Default has occurred and is continuing or otherwisewould result therefrom and (y) with respect to do soany Restricted Payment referenced in clause (ii) of the definition thereof such Restricted Payment shall be made in cash and if any Default has occurred and is continuing or would result therefrom and the Required Lenders have notified the Parent that the payments made under the Greens Creek Demand Note must be included in the limitation described below, the aggregate amount of Restricted Payments permitted to be made under this clause (a) shall not exceed $6,000,000 per each Fiscal Quarter or issue or sell $20,000,000 per each Fiscal Year (excluding, for purposes of these dollar limits, payments (which are consistent with past practices) made under the Greens Creek Demand Note until such time that the Required Lenders notify the Parent that such payments must be included in such limitation) and, in addition, any Equity Interests or accept any capital contributions, except thatRestricted Payment referenced in clause (i) of the definition thereof shall also not exceed the amount necessary for the purpose of paying, so long as all such payments are promptly used by the Parent to pay, payroll, operating, and administrative expenses incurred in the ordinary course of business, franchise or similar taxes and other similar taxes, fees and expenses required to maintain the Parents corporate existence);
(b) Restricted Payments made by non-wholly-owned Subsidiaries that are not Obligors to its shareholders or members generally so long as the Parent or its Subsidiary which owns the equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary making such Restricted Payment);
(c) the declaration or payment by the Parent of a cash dividend on, or on account of, any class of Capital Securities of the Parent (including Designated Preferred Stock) in an aggregate amount not to exceed the Funds Available for Restricted Payments; provided that immediately prior to such declaration or payment, an Authorized Officer of the Parent shall have certified in writing to the Administrative Agent that no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(iid) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in payment of any dividends the common stock or other common Equity Interests declaration of which was permitted pursuant to the immediately preceding clause (but not Debt Equivalents) b), so long as such payment is made within 60 days of such Persondeclaration or on its regularly schedule payment date;
(iiie) the Borrower redemption, purchase or other acquisition by the Parent of its Series B Preferred Stock and, concurrent with any such redemption, the payment of accrued dividends thereon in an aggregate amount not to exceed the Funds Available for Restricted Payments; provided that immediately prior to such redemption, purchase or other acquisition or payment of accrued dividends, an Authorized Officer of the Parent shall have certified in writing to the Administrative Agent that no Default shall have occurred and each Subsidiary may purchasebe continuing or would result therefrom;
(f) the redemption, redeem purchase or otherwise acquire its common Equity Interests other acquisition of Capital Securities of the Parent in exchange for, or with the net cash proceeds received from of, the substantially concurrent issue of new common Equity Interests;
sale (iv) with the approval other than to a Subsidiary of the board Parent) of directors Capital Securities (other than Redeemable Capital Securities and Designated Preferred Stock) of the Borrower Parent; provided that immediately prior to such redemption, purchase or other acquisition, an Authorized Officer of the Parent shall have certified in writing to the Administrative Agent that immediately before and if the Borrower is Solvent after giving effect to such Restricted Paymentredemption, purchase or other acquisition no Default shall have occurred and be continuing or would result therefrom;
(g) the Borrower may redeem redemption, purchase or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors other acquisition of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made Capital Securities pursuant to this Section 7.06(iv)the Small Lot Repurchase Program in an aggregate amount not to exceed the Funds Available for Restricted Payments; provided that immediately prior to such redemption, when aggregated with repurchases purchase or other acquisition, an Authorized Officer of the Borrower’s common stock permitted by Section 7.06(v), Parent shall not exceed have certified in writing to the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower Administrative Agent that immediately before and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Paymentredemption, purchase or other acquisition no Default shall have occurred and be continuing or would result therefrom; and
(h) the declaration and payment by the Parent of cash dividends on, or on account of, the Borrower may make Restricted Payments consisting Parent’s Series B Preferred Stock, 6.5% Mandatory Convertible Preferred Stock and 12% Convertible Preferred Stock, provided, that, (a) payment of such dividend occurs on or prior to January 31, 2010, (b) such payment is only for accrued and unpaid dividends to such date of payment, and (c) the Parent only pays such portion of the repurchase of its dividend in cash that is not otherwise payable with common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
Appears in 1 contract
Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, other than:
(a) dividends or incur any obligation distributions payable in common stock of the Borrower and its Restricted Subsidiaries;
(contingent b) Restricted Payments made by Restricted Subsidiaries to the Borrower or otherwisewholly owned Restricted Subsidiaries;
(c) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, the payment of accrued and unpaid distributions by Titan Capital Trust on the HIGH TIDES so long as no Default shall have occurred and be continuing or would result therefrom;
(d) solely in the event that the ACS Acquisition is not consummated on or prior to March 31, 2000, the repurchase of HIGH TIDES having an aggregate liquidation value not to exceed the lesser of (x) an amount equal to 50% of the gross proceeds of the HIGH TIDES (including any HIGH TIDES issued as a result of the exercise of the over-allotment option) plus a premium equal to 2.5% of such gross proceeds and (y) the aggregate liquidation value of HIGH TIDES tendered pursuant to the repurchase offer made by Titan Capital Trust as a result of the failure to consummate such acquisition plus a premium equal to 2.5% of such aggregate liquidation value;
(e) subsequent to the issuance of shares in connection with the initial public offering of Cayenta pursuant to the terms of the applicable underwriting agreement, the spin-off of Cayenta to shareholders of the Borrower; provided that the Total Debt to EBITDA Ratio does not exceed 3.00:1:00 (calculated on a PRO FORMA basis) at the time of any action described below such spin-off and, at the time of such spin-off, no Default shall have occurred and be continuing or would result therefrombe caused thereby, both before and after giving effect to such spin-off (with financial covenants to be calculated on a historical and a PRO FORMA basis after giving effect to such spin-off); and
(f) redemptions of Capital Stock, provided, that the following conditions are met:
(i) each Subsidiary may make Restricted Payments the Total Debt to the BorrowerEBITDA Ratio, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns immediately following such redemption is less than 3.00:1.00, calculated on a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;PRO FORMA basis; and
(ii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely Fixed Charge Coverage Ratio immediately following the redemption shall not be less than the ratio required for the period in the common stock or other common Equity Interests (but not Debt Equivalents) of which such Person;redemption occurs, as set forth in SECTION 8.4(c), calculated on a PRO FORMA basis; and
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue aggregate value of new common Equity Interests;such redemptions shall not exceed $5,000,000 in any Fiscal Year; and
(iv) with the approval aggregate value of all such redemptions shall not exceed $20,000,000; and
(v) the board unborrowed Revolving Loan Commitment Amount shall not be less than $20,000,000 at the time of directors such redemption; and
(vi) at the time of the Borrower such Restricted Payment, both before and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem no Default shall have occurred and be continuing or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal yearcaused thereby.
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Restricted Payments, etc. Declare or make, directly or indirectly, (a) The Borrower will not make any Restricted Payment, or incur any obligation (contingent or otherwise) other than dividend payments needed to do sopay the tax liability and legal, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred accounting and be continuing at other professional fees and expenses of the time of any action described below or would result therefrom:
Managing General Partner if (i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries there exists a Default or an Event of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make dividend payments Default or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted PaymentPayment a Default or an Event of Default would exist, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending pro forma ratio of the Coverage Test is less than 2.00 if prior to December 31, 20071997, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries 2.25 if thereafter but prior to December 31, 1998, or 2.50 thereafter, for the period of four Fiscal Quarters immediately preceding fiscal year; and
(v) with the approval date of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment. Other than this restriction, the Borrower may make quarterly Restricted Payments consisting in an amount not to exceed Available Cash in the preceding Fiscal Quarter. Upon satisfaction of the repurchase Coverage Test and subsequent declaration by the Borrower, Restricted Payments must be made within 60 days and if the payment would have been permitted as of the date of such declaration, such payment shall be permitted if made during such 60 day period. Notwithstanding the foregoing provisions of this section, no payment made by the Borrower on the Closing Date and referred to in the Registration Statement shall be deemed to constitute a Restricted Payment.
(b) The Borrower will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of such Restricted Subsidiary to (a) pay dividends or make any other distributions on or in respect of its common capital stock; provided, that the aggregate amounts spent on repurchases of or pay any indebtedness owed to the Borrower’s common stock permitted by this Section 7.06(v, (b) when aggregated with redemptions make loans or repurchases made pursuant advances to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and or (c) transfer any of its Subsidiaries properties or assets to the Borrower, except for such encumbrances or restrictions existing under or by reason of customary non-assignment provisions in any lease governing a leasehold interest or other contract entered into in the immediately preceding fiscal year.ordinary course of business consistent with past practices. SECTION
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Restricted Payments, etc. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or makemake a Restricted Payment, directly or indirectly, make any deposit for any Restricted Payment, or incur any obligation other than:
(contingent or otherwisea) Restricted Payments made by Subsidiaries to do so(i) the Borrower, or issue to Wholly Owned Subsidiaries or sell (ii) made proportionately to all holders of Capital Securities, including to KCS Minority Interest Subsidiaries;
(b) dividends or distributions made by the Borrower payable solely in Capital Securities of the Borrower (other than Disqualified Stock);
(c) the exchange of Capital Securities of the Borrower for other Capital Securities of the Borrower (other than Disqualified Stock);
(d) payments or distributions to dissenting stockholders pursuant to applicable law or in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets permitted by the terms of this Agreement;
(e) cash payments in lieu of the issuance of fractional shares; and
(f) Restricted Payments by the Borrower to its shareholders for any Equity Interests Fiscal Quarter of the Borrower commencing after June 30, 2010; provided, that (i) the amount of such Restricted Payments shall not exceed an aggregate amount equal to (A) $50,000,000 plus (1) 50% of Net Income accrued on a cumulative basis during the period (deemed for purposes of this Section to be one accounting period) commencing on January 1, 2010 and ending on the last day of the Fiscal Quarter immediately preceding the date of declaration of such Restricted Payment (or, if such Net Income shall be a deficit, minus 100% of such deficit) (the “Restricted Payment Accrual Termination Date”) plus (2) an amount equal to the Dollar equivalent of total cash contributions to the equity capital of Borrower after the Effective Date resulting from the proceeds of a private placement or accept a public issuance of Capital Securities (other than Disqualified Stock) that are not applied to (x) Capital Expenditures, (y) consummate acquisitions, consolidations, mergers or other business combinations by the Borrower or its Subsidiaries or (z) prepayment of any capital contributionsIndebtedness pursuant to clause (a)(iii) of Section 7.2.16, except thatless (B) the aggregate amount of any Restricted Payment declared or distributed during the period beginning on January 1, so long 2010 and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date; (ii) the Borrower shall have delivered to the Administrative Agent the applicable financial statements for the Fiscal Quarter ending on such Restricted Payment Accrual Termination Date in accordance with Section 7.1.1; and (iii) as of the time of the making of such dividend or distribution, no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(ii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person;
(iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests;
(iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that the aggregate amounts spent on redemptions or repurchases made pursuant to this Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and
(v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.
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Sources: Credit Agreement (Kansas City Southern De Mexico, S.A. De C.V.)