Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that: (a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); (b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership); (c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06; (d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; (f) Restricted Payments may be made in connection with the consummation of the ADT Transactions; (g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person; (h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder); (i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10; (j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing; (k) [reserved]; (l) Restricted Payments may be made with Excluded Contributions; (m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing; (n) Restricted Payments constituting the Special Dividend; and (o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 8 contracts
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses sub-clauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses sub-clauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 4,000,000 (which shall increase to $8,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Event of Default shall have occurred and be continuing or would result therefrom and, immediately after giving effect thereto, the Net First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 4.25 to 1.00;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment Payments shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined when taken together with any payments and or distributions under made pursuant to Section 6.09(b)(i)(G6.09(b)(i)(F), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing30,000,000;
(k) [reserved];; or
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 7 contracts
Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”equity); provided, however, that:
(a) Restricted Payments any Subsidiary of the Company may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower Company or to any Wholly Owned Subsidiary of the Borrower Company (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Company or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Company may be made declare and pay dividends or make other distributions (directly or indirectly) (i) to any Parent Entity in respect of (iA) overhead, legal, accounting accounting, consulting and other professional fees and expenses of Holdings or any Parent Entity, (iiB) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iiiC) franchise and or similar taxes Taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s direct or indirect) ownership of the BorrowerCompany, (ivD) payments permitted by Section 6.07(b) (other than except to the extent expressly subject to this Section 6.07(b)(vii6.06)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (viE) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses clauses (iA) and (iiiB), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (iA) and (iiiB) that are allocable to the Borrower Company and its Subsidiaries (which shall be 100% at any time thatfor so long as such Parent Entity, as the case may be, (x) Holdings beneficially owns no material assets other than the Equity Interests in the Company); (ii) with respect to any taxable period for which the Company is or has been a partnership or disregarded entity for U.S. federal income tax purposes, to any person that (directly or indirectly) held Equity Interests of the Borrower Company during such taxable period (a) to the extent such tax distributions are permitted under (I) the Amended and assets incidental to such equity ownership Restated United States Tax Agreement for NCL Corporation Ltd., dated January 24, 2013 or the Amended and Restated Profits Sharing Agreement for NCL Corporation Ltd., dated January 22, 2013, each as in effect on the Closing Date, (collectively, the “Tax Agreements”) or (yII) any amended version of the Tax Agreements to the extent such amendments are not materially adverse to the Lenders (collectively, the “Amended Tax Agreements”) and (b) to the extent not otherwise permitted under clause (a), tax distributions in respect of audit adjustments resulting from audits of the Company and/or its Subsidiaries commencing after the Closing Date, determined in a manner consistent with and subject to the limitations set forth in the Tax Agreements and the Amended Tax Agreements; and (iii) with respect to any taxable period for which the Company and any Parent Entity owns directly files an affiliated, consolidated, combined or indirectly no material assets other than Equity Interests of Holdings and unitary tax return in any other relevant jurisdiction, distributions to such Parent Entity and assets incidental in amount not to exceed the amount of any Taxes in such equity ownershipjurisdiction that the Company and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Company and/or its Subsidiaries, as applicable, been stand-alone taxpayers in such jurisdiction (less any portion of such amounts directly payable by the Company and/or its Subsidiaries);; provided, that distributions in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Company or any of its Restricted Subsidiaries for such purpose.
(c) Restricted Payments the Company may be made to Holdings, declare and pay dividends or make other distributions (directly or indirectly) the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Company or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year the greater of $48,000,000 [*] and [*]% of Consolidated Total Assets (plus (x) the amount of net proceeds contributed to the Borrower Company that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as the Company may pay dividends (idirectly or indirectly) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its equity holders in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower Company elects to apply to this Section 6.06(e(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Company shall be in Pro Forma Compliance;
(f) Restricted Payments the Company may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hg) Restricted Payments the Company may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not no greater than [*]% per annum of Market Capitalization;
(h) the Company may declare and pay dividends or make other distributions (directly or indirectly) to exceed $100,000,000 for its equity holders if after giving effect to such dividend or distribution, the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date Total Leverage Ratio is equal to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior or less than 3.30 to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);1.00; and
(i) Restricted Payments the Company may be made to Holdings declare and pay dividends or any Parent Entity to finance any Investment that if made by the Borrower make other distributions (directly or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interestsindirectly) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date its equity holders in an aggregate amount not to exceed the greater of $415,000,000 [*] and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date [*]% of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Consolidated Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Assets.
Appears in 7 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state state, local or local income foreign tax purposes, distributions Restricted Payments to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or and/or foreign income taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, group and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x1) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y2) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Borrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 20,000,000 (which shall increase to $40,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect thereto, the Interest Coverage Ratio on a Pro Forma Basis shall be no less than 2.00 to 1.00;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including payments and distributions to dissenting stockholders or stockholders exercising appraisal rights pursuant to applicable law;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for per annum no greater than 6.0% of the period from the Ninth Incremental Assumption Market Capitalization; provided, that no Event of Default shall have occurred and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)be continuing;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 200,000,000 and 0.15 0.30 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Payment; provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved]Restricted Payments may be made under the Merger Agreement;
(l) Restricted Payments may be made with in an amount equal to Excluded Contributions;
(m) other Restricted Payments so long asmay be made; provided that, immediately no Default or Event of Default has occurred and is continuing or would result therefrom and after giving effect to such payment or distribution on a Pro Forma BasisRestricted Payment, the Net Total Leverage Ratio is on a Pro Forma Basis would not greater than 2.90 exceed 2.75 to 1.00; provided, that no Event of Default shall have occurred and be continuing;and
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on any consideration, payment, dividend, distribution or after the Ninth Incremental Assumption and Amendment Agreement Effective Date other transfer in an aggregate amount not to exceed $600,000,000connection with a Permitted Securitization Financing. Notwithstanding anything herein to the contrary, (i) the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this AgreementAgreement and (ii) solely for purposes of this Agreement and the other Loan Documents, any equity contribution or purchase of Equity Interests to fund shares that have selected appraisal rights (including any settlement in respect thereof) shall be deemed to have been made on the Closing Date, and any payment to the holders of such shares shall be deemed to have been made on the Closing Date, in each case, as part of the Transactions. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Incurrence of Indebtedness to finance any other Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Clause.
Appears in 5 contracts
Samples: Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.)
Dividends and Distributions. Declare or pay Pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (in each case, solely to a holder of Equity Interests in such person’s capacity as a holder of such Equity Interests) (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes Taxes, and other fees and expenses expenses, in connection with the maintenance of its Holdings’ (or any Parent Entity’s) existence and its Holdings’ (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii))) or the last paragraph of Section 6.07, (v) in with respect of to any taxable period year for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower Parent Entity is the common parent, or for which the Borrower is a partnership or disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a Parent Entity that is a C corporation (a “Corporate Parent”) for U.S. federal and/or applicable state state, local or local income foreign tax purposes, distributions Restricted Payments to any direct such Parent Entity or indirect parent of the Borrower Corporate Parent, as applicable, in an aggregate amount not to exceed the amount of any such U.S. federal, state, local or and/or foreign taxes income Taxes that the Borrower and/or its applicable Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup for all applicable taxable years (without duplication, for the avoidance of doubt, of the amount of such Taxes actually directly paid by the Borrower and/or any of its Subsidiaries to the relevant taxing authority, if any); provided, that, such distributions in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Borrower or any Guarantor for such purpose; and (vi) customary salary, bonus bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdingspurchase, the proceeds of which are used to purchase retire or redeem the Equity Interests of the Borrower, Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then any future, present or former directors, consultants, officers or employees (or their respective Immediate Family Members) of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries Subsidiaries, including any repurchase, retirement or by redemption pursuant to any Plan or any shareholders’ agreement or other agreement or arrangement then in effect or upon such person’s death, disability, retirement or termination of employment or under the terms to cover such person’s payment of any such Plan or any other agreement under which such shares of stock or related rights were issuedwithholding taxes in connection therewith; provided, that the aggregate amount of such purchases purchases, retirements or redemptions under this clause (c) shall not exceed in any fiscal calendar year $48,000,000 30,000,000 (plus an amount equal to (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangementsthat occur after the Closing Date; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received by the Borrower or any Subsidiary during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or the Subsidiaries any Subsidiary in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any calendar year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from any present or former members of management management, directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or its Subsidiaries any Subsidiary in connection with a repurchase of Equity Interests of the Borrower, Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default shall have occurred and be continuing;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including payments and distributions to dissenting stockholders or stockholders exercising appraisal rights pursuant to applicable law or as a result of the settlement of any stockholder claims or action (whether actual, contingent or potential);
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior of up to the Ninth Incremental Assumption greater of (i) 7.0% of the Market Capitalization in any calendar year and Amendment Agreement Effective Date pursuant to this Section 6.06(h(ii) shall not use capacity hereunder)$200,000,000 in any calendar year;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Permitted Business Acquisition, New Project or other acquisition or Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Permitted Business Acquisition, New Project or other acquisition or Investment and (B) Holdings or such parent Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition Acquisition, New Project or other acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 140,000,000 and 0.15 0.30 times the Adjusted EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Payment; provided, provided that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made (i) in an aggregate amount not to exceed the aggregate amount of Excluded Contributions or (ii) without duplication of clause (i), in an amount not to exceed the net proceeds from an Asset Sale or other Disposition in respect of property or assets acquired after the Closing Date, to the extent the acquisition of such property or assets was financed with Excluded Contributions;
(m) other any Restricted Payments Payment may be made so long asas no Default or Event of Default has occurred and is continuing or would result therefrom and, immediately after giving effect to such payment or distribution on a Pro Forma BasisRestricted Payment, the Net Total Leverage Ratio is on a Pro Forma Basis would not greater than 2.90 exceed 4.25 to 1.00; provided, that no Event of Default shall have occurred and be continuing;and
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments any consideration, payment, dividend, distribution or other transfer in connection with a Permitted Securitization Financing or a receivables financing may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000made. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment or redemption, purchase, defeasance or other payment would have complied with the provisions of this Agreement. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the fair market value thereof, which shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Restricted Payment or as of the date of the definitive agreement with respect to such Restricted Payment. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 5 contracts
Samples: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) ), in each case other than in connection and substantially concurrently with a Permitted Change in Control (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (vv)(A) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup or (B) in respect of any taxable period for which the Borrower is treated as a partnership or disregarded entity for U.S. federal and/or applicable state, local or foreign tax purposes except in the case in which the Borrower is treated as a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect owners of the Borrower in an amount not to exceed the product of (i) the amount of taxable income of the Borrower and/or its Subsidiaries for such taxable period, calculated without regard to tax-deductible amortization of intangible assets (including any amortization resulting from any increase in basis under Sections 743(b) and 734(b) of the Code (and any equivalent provisions of applicable tax law)) and (ii) the Hypothetical Tax Rate, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 15,000,000 (which shall increase to $30,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT 2015 Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of the Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT 2015 Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for per annum no greater than 6% of the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Market Capitalization;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 90,000,000 and 0.15 0.50 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Payment; provided, that if such Restricted Payments are made to the Fund or any Fund Affiliate, no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 4.30 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(ol) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000with Excluded Contributions. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 3 contracts
Samples: First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $24,000,000 (which shall increase to $48,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 3.60 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for per annum no greater than 6% of the period net proceeds received by the Borrower, Holdings or any Parent Entity from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31Borrower, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that Holdings or any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Parent Entity;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 350,000,000 and 0.15 0.12 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Payment; provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;; and
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 1.85 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 3 contracts
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), First Lien Credit Agreement (ADT, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) (A) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup or (B) in respect of any taxable period for which the Borrower is treated as a partnership or disregarded entity for U.S. federal and/or applicable state, local or foreign tax purposes, except in the case in which the Borrower is treated as a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C Corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect owners of the Borrower in an amount not to exceed the product of the amount of taxable income of the Borrower and/or the Subsidiaries for such taxable period, and the Hypothetical Tax Rate and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings Holdings, the Borrower or any Parent Entity or Subsidiaries (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal calendar year $48,000,000 1,000,000 (which shall increase to $2,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, any Restricted Payments may be made in an aggregate amount equal to a portion of so long as the Cumulative Credit on Payment Conditions are satisfied at the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless time such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedPayments are made;
(f) Restricted Payments may be made under the Purchase Agreement (as in connection with effect on the consummation of the ADT TransactionsClosing Date);
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding Holdings or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for per annum no greater than 6.0% of the period net proceeds received by Holdings, the Borrower or any Parent Entity from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that Borrower or any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Parent Entity;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) [Reserved];
(k) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)5,000,000; provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];or
(l) Restricted Payments may be made in connection with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000Transactions. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 3 contracts
Samples: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Qualified Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoingforegoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, “Restricted PaymentsDividends”); provided, however, that:
(a) Restricted Payments (i) any Subsidiary may be made to the Borrower declare and pay dividends to, or any Wholly Owned Subsidiary of the Borrower (ormake other distributions to, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and and, if not a Wholly Owned Subsidiary, to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); and (ii) to the extent permitted by Section 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) Restricted Payments Dividends may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) 6.07 (other than Section 6.07(b)(viiSections 6.07(viii) or (x)), (v) in respect of any taxable period for which the Borrower (or if the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state, local or foreign income tax purposes, such C corporation) and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions Dividends to any such direct or indirect parent of the Borrower to fund income taxes for which such parent is liable in an amount not to exceed the amount of any U.S. federal, state, local or foreign income taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period (taking into account prior year losses) had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses (i) and (iii), the amount of such Restricted Payments Dividends shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x1) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y2) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Borrower);
(c) Restricted Payments may be made Dividends to Holdings, the proceeds of which are used Holdings or any Parent Entity in order to enable Holdings or any Parent Entity to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of Dividends for such purchases or redemptions under this clause (cSection 6.06(c) shall not exceed (i) in any fiscal year (A) $48,000,000 7,500,000 (plus any amounts carried over from prior years, up to $15,000,000 in the aggregate) plus (xB) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Excluded Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests)Proceeds, which, if not used in any fiscal year, may be carried forward to any subsequent calendar fiscal year, and (ii) amounts received in respect of key man life insurance policy proceeds; and provided, further, that cancellation of Indebtedness owing to Holdings, the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment Dividend for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing continuing, other Dividends may be made in an aggregate amount with all other Dividends and other distributions made pursuant to this clause (iie) after giving effect not to such Restricted Payment, exceed the Net Total Leverage Ratio greater of $50,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Dividend;
(f) any person may make distributions to minority shareholders of any subsidiary that is not greater than 3.65 acquired pursuant to 1.00, Restricted Payments a Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with respect to shares of such subsidiary held by such shareholders;
(g) [reserved];
(h) Dividends may be made in an aggregate amount equal to a portion of the Cumulative Credit Available Free Cash Flow Amount on the date of such election that the Borrower elects to apply to this Section 6.06(e6.06(h), which such election shall (unless such Restricted Payment Dividend is made pursuant to clause (a) of the definition of “Cumulative CreditAvailable Free Cash Flow Amount”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided that no Event of Default has occurred and is continuing and after giving effect thereto, the Net Total Leverage Ratio on a Pro Forma Basis shall not be greater than 3.72 to 1.00;
(fi) Restricted Payments the Borrower or any Subsidiary may be make any Dividend on the Closing Date used to fund the Transactions and the fees and expenses related thereto or made in connection with the consummation of the ADT TransactionsTransactions (including payments made pursuant to or as contemplated by the Transaction Documents, as in effect on the Closing Date);
(gj) Restricted Payments the Borrower or any Subsidiary may be made to paymake payments of cash, or dividends, distributions or advances to allow Holdings or any Parent Entity such person to make payments, in payments of cash, in lieu of the issuance of fractional shares, shares upon the exercise of options or warrants or upon the conversion or exchange of Equity Interests of any such person;
(hk) Restricted Payments the Borrower may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date make Dividends to pay, or to allow Holding Holdings so that Holdings or any Parent Entity may make Dividends to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an aggregate amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 25,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)annum;
(il) Restricted Payments the Borrower may be made make Dividends to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, provided that (A) such Restricted Payment Dividend shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such parent Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary Loan Party (or, to the extent permitted by Section 6.04, a Subsidiary) or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.105.11;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(km) [reserved];
(ln) Restricted Payments may be the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower or any of its Subsidiaries issued or incurred in accordance with Section 6.01;
(o) Dividends that are made with Excluded Contributions;
(mp) Dividends in amounts required for Parent Entity of the Borrower to pay interest and/or principal on Indebtedness the proceeds of which have been contributed to the common equity of Borrower and that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower incurred in accordance with Section 6.01;
(q) other Restricted Payments Dividends so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 2.47 to 1.00; provided, provided that no Event of Default shall have has occurred and be is continuing;
(n) Restricted Payments constituting the Special Dividend; and
(or) Restricted Payments may be made on any consideration, payment, dividend, distribution or after the Ninth Incremental Assumption and Amendment Agreement Effective Date other transfer in an aggregate amount not to exceed $600,000,000connection with a Permitted Securitization Financing. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment Dividend or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 3 contracts
Samples: First Lien Credit Agreement (Exela Technologies, Inc.), First Amendment to First Lien Credit Agreement (Exela Technologies, Inc.), First Lien Credit Agreement (Exela Technologies, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Relevant Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Relevant Subsidiary of the Borrower (or, in the case of non-Relevant Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Relevant Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental or any of its Relevant Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower or, to the extent such equity ownership or (y) Equity Interests were issued as compensation for services rendered on behalf of the Loan Parties, any employee of any Parent Entity owns directly Company, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or indirectly no material assets other than Equity Interests of Holdings partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Relevant Subsidiaries may declare and pay dividends to the Borrower or any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Relevant Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directorsfor such purposes, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 U.S.$5.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(d) provided no Default or Event of Default then exists or would result therefrom, the Borrower may declare and pay dividends or make other distributions from the proceeds of any issuance of Equity Interests permitted to be made under this Agreement; and
(e) so long as provided (i) no Default or Event of Default has occurred and is continuing then exists or would result therefrom and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio Borrower shall be in compliance (on a Pro Forma Basis is not greater than 3.65 and after giving effect to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion the making of such distribution) with the provisions of Section 6.10 and Section 6.11 as of the Cumulative Credit on end of the date of such election that immediately preceding fiscal quarter, the Borrower elects may declare or make a distribution on or with respect to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of the Borrower during any such person;
(h) Restricted Payments may be made on or after fiscal quarter in accordance with the Ninth Incremental Assumption and Amendment Limited Partnership Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) Available Cash as of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more end of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)immediately preceding fiscal quarter.
Appears in 3 contracts
Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Dividends and Distributions. Declare Pay, directly or pay indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value any shares of any class of its Equity Interests (or permit any Subsidiary to purchase or acquire) any other than redemptions, purchases, retirements and acquisitions of Equity Interests made solely through the issuance of additional shares of Equity Interests of the Borrower’s Person redeeming, purchasing, retiring or acquiring such Equity Interests Interests) or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Relevant Subsidiary of the Borrower may be made to pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Relevant Subsidiary of the Borrower (or, in the case of non-Relevant Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Relevant Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental or any of its Relevant Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower or, to the extent such equity ownership or (y) Equity Interests were issued as compensation for services rendered on behalf of the Loan Parties, any employee of any Parent Entity owns directly Company, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or indirectly no material assets other than Equity Interests of Holdings partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Relevant Subsidiaries may declare and pay dividends to the Borrower or any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Relevant Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directorsfor such purposes, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 10.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation for the avoidance of Indebtedness owing to doubt the Borrower may make dividends or distributions to its direct or indirect parent to facilitate such direct or indirect parent making any Subsidiary from members of management of Holdingspurchases, any Parent Entity, the Borrower redemptions or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment acquisitions permitted by clause (b) (assuming for purposes of hereof such parent entity is the “Borrower” in this Section 6.06;clause (b)).
(dc) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such optionsoptions shall be permitted;
(ed) so long as (i) provided no Default or Event of Default has occurred and is continuing then exists or would result therefrom, the Borrower may pay dividends or make other distributions, or directly or indirectly redeem, purchase, retire or otherwise acquire for value, its Equity Interests, without duplication, (x) from the proceeds of any issuance of Equity Interests permitted to be made under this Agreement and (iiy) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail not exceeding the amount of Cumulative Credit immediately prior cash equity contributed to such election and the amount thereof elected to Borrower as common equity by any direct or indirect Parent Company thereof;
(e) the Closing Date Distribution shall be so appliedpermitted;
(f) Restricted Payments provided no Default or Event of Default then exists or would result therefrom, the Borrower may be made in connection make a distribution on or with respect to the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of the Borrower during any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders fiscal quarter in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior Available Cash attributable to the Ninth Incremental Assumption Borrower and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)its Subsidiaries;
(ig) Restricted Payments may be made to Holdings dividends, distributions, repurchases, retirements or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would other acquisitions for value shall be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof of the dividend, distribution, repurchase, retirement or the giving of noticeother acquisition for value, as applicablethe case may be, if if, at the date of declaration or notice, the giving of such notice such payment dividend, distribution, repurchase, retirement or other acquisition for value would have complied with the provisions of this Agreement. For purposes ;
(h) provided no Event of determining compliance with this covenantDefault then exists or would result therefrom, dividends, distributions, repurchases, retirements or other acquisitions for value shall be permitted to the extent the proceeds are used by Crestwood Equity Partners to pay operating expenses and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), to the extent reasonable and customary, incurred in the ordinary course of business and related to (i) the business of the Borrower and its Subsidiaries, (Aii) the nature of Crestwood Equity Partners as a Restricted Payment holding company, or (iii) the businesses owned by Crestwood Equity Partners prior to the Closing Date; and
(i) provided no Default or portion thereof) need not be permitted solely by reference to one category Event of permitted Restricted Payments (Default then exists or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauseswould result therefrom, the Borrower maymay make dividends, in its sole discretiondistributions, dividerepurchases, classify retirements or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or other acquisition for value for the purpose of funding any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Group Acquisition.
Appears in 3 contracts
Samples: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) any Restricted Payments Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, directly or indirectly, the Borrower or any Restricted Subsidiary (or, with respect to any Restricted Subsidiary that is not a Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned SubsidiariesBorrower, to each parent of such Restricted Subsidiary (including the Borrower or Borrower, any other Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary and to each other owner of Equity Interests of such Subsidiary Restricted Subsidiary) on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Restricted Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental or any of its Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower or, to the extent such equity ownership Equity Interests were issued as compensation for services rendered on behalf of the Borrower or (y) any Subsidiary Loan Party, any employee of any Parent Entity owns directly Company, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or indirectly no material assets other than Equity Interests of Holdings partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Restricted Subsidiaries may declare and pay dividends to the Borrower or any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon for such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issuedpurposes; provided, that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 U.S.$10.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (xi) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (yii) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided;
(c) if no Default or Event of Default then exists or would result therefrom, further, that cancellation of Indebtedness owing to then the Borrower may declare and pay dividends or make other distributions from the proceeds of any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower substantially concurrent issuance or its Subsidiaries in connection with a repurchase sale of Equity Interests permitted to be made under this Agreement other than an Additional Equity Contribution or a Specified Equity Contribution; provided, that the proceeds of Holdings an issuance or any Parent Entity will sale to a Restricted Subsidiary may not be deemed used to constitute a Restricted Payment for purposes of this Section 6.06declare or pay dividends or make other distributions;
(d) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(e) so long the Borrower may declare and pay dividends or make other distributions to the MLP Entity in order to make any payment with respect to the Deferred True-up Obligation to the extent permitted by Section 6.09(d); and
(f) the Borrower may repay capital invested in it by the MLP Entity or may declare and make distributions on or with respect to the Equity Interests of the Borrower or any other Loan Party with Available Cash on a quarterly basis in an aggregate amount necessary to pay regularly scheduled interest in respect of the Deferred True-up Obligation and make prepayments in respect of the Deferred True-up Obligation, which aggregate amount shall not exceed U.S.$6.0 million per calendar quarter plus an aggregate amount not to exceed the amount necessary for SMPH to pay and satisfy the losses, liabilities and expenses relating to the Xxxxxx Matter (as defined in the Purchase Agreement) and other expenses associated with any environmental indemnification obligations plus solely to the extent necessary to avoid a “Default” or “Event of Default” as defined in and under the SMPH Credit Agreement, an aggregate amount not to exceed U.S.$20.0 million; provided, that immediately before and after giving effect to such repayment, declaration or distribution, (i) no Default or Event of Default has occurred and is continuing then exists or would result therefrom, and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio Borrower shall be in compliance (on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving making of such notice such payment would have complied distribution) with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more Financial Performance Covenants as of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one end of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)immediately preceding fiscal quarter.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Summit Midstream Partners, LP), Term Loan Credit Agreement (Summit Midstream Partners, LP), Purchase Agreement (Summit Midstream Partners, LP)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) ), or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, collectively, “Restricted Payments”); provided, however, that:
(a) any subsidiary of the Company may declare and make Restricted Payments may be made to the Borrower Company or to any Wholly Owned Subsidiary of the Borrower Company (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary subsidiary that is a direct or indirect parent of such Subsidiary subsidiary and to each other owner of Equity Interests of such Subsidiary subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiarysubsidiary) based on their relative ownership interests);
(b) the Company may declare and make Restricted Payments may be made to Parent Companies and Holdings (A) in respect of (i) overhead, tax liabilities of Parent Companies and Holdings (in the case of income tax liabilities in an amount not in excess of the portion of such tax liabilities attributable to Holdings and its consolidated subsidiaries (including such tax liabilities arising as a result of receipt of such distributions to pay tax liabilities) and in the case of other tax liabilities to the extent attributable to Holdings and its consolidated subsidiaries or the existence of such Parent Companies), legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) compensation and incentive payments, (iii) fees and expenses related to the Transaction, any public equity offering or private placement of Equity Interests or debt securities of Holdings or any of the Parent Entity Companies or any investment or acquisition by Holdings and its Subsidiaries permitted hereunder (whether or not consummated, successful) and (iiiiv) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupCompany, and (viB) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or and/or any of the Parent Entity Companies to make such payments; providedpayments permitted by Sections 6.06(e), that in the case of subclauses (i6.07(b) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(c) the Company may declare and make Restricted Payments may be made to Parent Companies and Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Holdings or any of the its Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such personPerson’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock Equity Interests or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions Restricted Payments under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 (15.0 million plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Holdings or any Subsidiary of its Subsidiaries in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year and (y) of any key-man life insurance policies recorded during such calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such optionsoptions shall be permitted;
(e) so long as (i) the Company may, at any time when no Default or Event of Default has occurred exists, declare and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, make Restricted Payments may be to the extent the aggregate amount of Restricted Payments declared and made in a fiscal quarter do not exceed an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit Available Amount on the date of such election that the Borrower Holdings elects to apply to this Section 6.06(e), which such election shall (unless such ; provided that the Company may elect to not declare and make a Restricted Payment is permitted by this clause (e) in any fiscal quarter in whole or in part but instead to declare and make the deferred portion of such permitted Restricted Payment during a future fiscal quarter, provided further that any Restricted Payment not declared and made in any fiscal quarter must be declared and made no later than the third succeeding fiscal quarter following such fiscal quarter and if not so declared and made by such time then such deferred Restricted Payment may no longer be declared and made pursuant to this clause (ae);
(f) the Company and Holdings may make Restricted Payments necessary to consummate the Transaction (including one or more share repurchases referred to in the parenthetical to clause (iii) of the definition of “Cumulative Credit”) be set forth Transaction” in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;Section 1.01); and
(fg) the Borrower may declare and make Restricted Payments may be made to Holdings to allow payment of (i) interest on any debt securities issued by Holdings and (ii) fees and expenses incurred in connection with the consummation issuance, refinancing or retirement of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make paymentsIndebtedness by Holdings, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior case to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by extent the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) net proceeds from such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be Indebtedness are contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment Company (or portion thereof) need not be permitted solely by reference used to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, refinance previously issued Indebtedness used for such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofpurpose).
Appears in 2 contracts
Samples: Amendment Agreement (Celanese Corp), Credit Agreement (Celanese CORP)
Dividends and Distributions. Declare or Each Loan Party will not, nor will it permit any Subsidiary to, (i) pay any dividend dividend, or make any other distribution (by reduction of capital distribution, payment or otherwise)advance, whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeemholder of, purchase, retire or otherwise acquire for value (in respect of, any shares, membership interests, partnership interests, beneficial interests, warrants or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any other equity interests in such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Loan Party or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to redeem, repurchase or purchase any public offering shares, membership interests, partnership interests, beneficial interests, warrants, or private placement of Equity Interests other equity interests in such Loan Party or debt securities of Holdings such Subsidiary, or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrowerprepay, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii))redeem, (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidatedrepurchase, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parentpurchase, or maintain any sinking fund or other fund for which the Borrower is a disregarded entity for U.S. federal income tax purposes payment of, any Indebtedness of such Loan Party or of such Subsidiary that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state may be convertible into any equity interest in such Loan Party or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes such Subsidiary; provided that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii)Subsidiaries will be permitted to pay dividends to, the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, the Maker (or repurchase if the Subsidiary initially paying the dividend or redeem shares frommaking the distribution is not a direct Subsidiary, then to one or more Subsidiaries but only to the extent necessary for the purpose of effecting the concurrent payment of a dividend or distribution in the same amount from a direct Subsidiary), (ii) payments, dividends or distributions by the Maker to its direct or indirect equity holders in an amount not order to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31pay consolidated or combined federal, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior state or local income or franchise taxes attributable to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings income of the Maker or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; providedof its Subsidiaries, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted such taxes are not payable directly by the Maker or any of their Subsidiaries, which payments, dividends and distributions by the Maker (less any such taxes payable directly by the Maker or any of its Subsidiaries) will not be in Section 6.05) excess of the person formed applicable income or acquired into franchise tax liabilities that would have been payable by Maker and the Borrower or Subsidiaries on a Subsidiary in order to consummate such Permitted Business Acquisition or Investmentstand-alone basis, in each case, in accordance with the requirements of Section 5.10;
and (jiii) other Restricted Paymentspayments, combined with payments and dividends or distributions permitted under Section 6.09(b)(i)(G), may be made 8.06 of the Madryn Loan Agreement as in effect on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)hereof.
Appears in 2 contracts
Samples: Secured Promissory Note and Guaranty Agreement (Greenbrook TMS Inc.), Secured Promissory Note and Guaranty Agreement (Neuronetics, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the BorrowerParent’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower Parent or any Wholly Owned Subsidiary of the Borrower (or, in the case of provided that Restricted Payments made by a non-Wholly Owned Subsidiaries, Subsidiary to the Borrower Parent or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary must be made on a pro rata basis (or more favorable basis from the perspective of the Borrower Parent or such Subsidiary) based on their relative its ownership interestsinterests in such non-Wholly Owned Subsidiary);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any by the Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any the Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any the Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (cb) shall not exceed in any fiscal year $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower Parent that were (x) received by Holdings or any the Parent Entity during such calendar year from sales of Equity Interests of Holdings or any the Parent Entity to directors, consultants, officers or employees of Holdings, any the Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, Available Amount and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year); and provided, further, that cancellation of Indebtedness owing to the Borrower Parent or any Subsidiary from members of management of Holdings, any the Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any the Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise or settlement of stock options or other Equity Interests if such Equity Interests represent a portion of the exercise price of or withholding obligation with respect to such optionsoptions or other Equity Interests;
(ed) so long as as, at the time any such Restricted Payment is made and immediately after giving effect thereto (ix) no Default or Event of Default has shall have occurred and is continuing and (iiy) after giving effect to such Restricted Payment, the Total Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 4.50 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit Available Amount on the date of such election that the Borrower Parent elects to apply to this Section 6.06(e6.06(d), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”Available Amount) be set forth in a written notice of a Responsible Officer of the Lux Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit Available Amount immediately prior to such election and the amount thereof elected to be so applied;
(fe) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including the payment of the appraised value of any Dissenting Shares (as defined in the Merger Agreement) in accordance with the Merger Agreement;
(gf) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hg) other Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount from and after the Third Amendment Effective Date not to exceed the greater of $415,000,000 250,000,000 and 0.15 times 6.25% of Consolidated Total Assets when made; and
(h) additional Restricted Payments, so long as, at the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of time any such Restricted Payment is made and immediately after giving effect thereto, (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(jx) shall not use capacity hereunder); provided, that no Default or Event of Default shall have occurred and be continuing;
is continuing and (ky) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution the Total Net Leverage Ratio on a Pro Forma Basis, the Net Total Leverage Ratio Basis is not greater than 2.90 3.50 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Incremental Assumption Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary subsidiary of the Borrower to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoingforegoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, “Restricted PaymentsDividends”); provided, however, that:
(a) Restricted Payments (i) any Subsidiary may be made to the Borrower declare and pay dividends to, or any Wholly Owned Subsidiary of the Borrower (ormake other distributions to, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); and (ii) to the extent permitted by Section 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings, including, in an aggregate amount not to exceed $2,500,000, for director fees and for costs and expenses associated with registration and listing of Holdings’ Equity Interests, and (ii) actual U.S. federal, state and local income Tax liabilities of Holdings or any Parent Entityfor the consolidated group of which Holdings is parent to the extent that Holdings, and not the Borrower, (iiA) files a consolidated U.S. federal income tax return that includes the Borrower and its Subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or local income taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group; provided, that with respect to any such taxes attributable to Unrestricted Subsidiaries, such dividends or distributions shall be permitted only to the extent of cash actually received from such Unrestricted Subsidiaries and (B) actually pays, or will pay, as the consolidated tax payor, such taxes for the Borrower and its Subsidiaries, it being agreed that if such dividends and distributions are paid to Holdings and Holdings does not make such consolidated tax payments on the date when the Borrower and its subsidiaries are required to pay such taxes, such failure shall be an Event of Default that shall continue until all such taxes are paid, (iii) fees and expenses related to any public offering or private placement of Equity Interests or debt equity securities of Holdings or any Parent Entity whether or that is not consummated, and (iiiiv) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, the proceeds of which are used Holdings in order to enable Holdings to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of dividends for such purchases or redemptions under this clause (cSection 6.06(c) shall not exceed (i) in any fiscal year (A) $48,000,000 2,500,000 (plus up to $1,250,000 of any such unused amounts from the immediately preceding year which may be carried over), plus (xii) the amount of net cash proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary from the issuance of Equity Interests of Holdings (other than Disqualified Stock) in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included arrangements as set forth in any determination a certificate of a Responsible Officer of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests)Borrower, which, if not used in any fiscal year, may be carried forward to any subsequent fiscal calendar year; and provided, further, that cancellation plus (iii) amounts received in respect of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06key man life insurance policy proceeds;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentor would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments any person may be made make additional dividends or other distributions in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is with all other Dividends and other distributions made pursuant to this clause (ae) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior not to such election and the amount thereof elected to be so appliedexceed $5,000,000;
(f) Restricted Payments any person may be made in connection make distributions to minority shareholders of any subsidiary that is acquired pursuant to a Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with the consummation respect to shares of the ADT Transactionssuch subsidiary held by such shareholders;
(g) Restricted Payments [reserved];
(h) [reserved];
(i) [reserved];
(j) the Borrower or any Subsidiary may be made to paymake payments of cash, or dividends, distributions or advances to allow Holdings or any Parent Entity such person to make payments, in payments of cash, in lieu of the issuance of fractional shares, shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, however, that (A) such Restricted Payment shall be made substantially concurrently with the closing aggregate amount of such Investment and (B) such parent shallpayments, immediately following the closing thereofdividends, cause (1) all property acquired (whether assets distributions or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) advances shall not use capacity hereunder)exceed $5,000,000; provided, that no Event of Default shall have occurred and be continuing;and
(k) [reserved];; and
(l) Restricted Payments the Borrower may be made with Excluded Contributions;
(mx) other Restricted Payments so long as, immediately after giving effect declare and pay dividends to such payment Holdings to enable Holdings to make payments or distribution on a Pro Forma Basis, purchases in respect of the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event Existing Holdings Notes using the proceeds of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions issuances of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant2017 Exchange Notes, (Ay) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described issue 2017 Exchange Notes in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made exchange for Existing Holdings Notes pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect 2017 Exchange and (z) declare and pay dividends to any substantially concurrent Restricted Payment Holdings to enable Holdings to pay accrued and unpaid interest with respect to Existing Holdings Notes in connection with the transactions described in clauses (or any portion thereofx) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment and (or any portion thereofy).
Appears in 2 contracts
Samples: Credit Agreement (Affinion Group Holdings, Inc.), Credit Agreement (Affinion Group, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”equity); provided, however, that:
(a) Restricted Payments any Subsidiary of the Company may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower Company or to any Wholly Owned Subsidiary of the Borrower Company (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Company or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Company may be made declare and pay dividends or make other distributions (directly or indirectly) (i) to any Parent Entity in respect of (iA) overhead, legal, accounting accounting, consulting and other professional fees and expenses of Holdings or any Parent Entity, (iiB) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iiiC) franchise and or similar taxes Taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s direct or indirect) ownership of the BorrowerCompany, (ivD) payments permitted by Section 6.07(b) (other than except to the extent expressly subject to this Section 6.07(b)(vii6.06)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (viE) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses clauses (iA) and (iiiB), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (iA) and (iiiB) that are allocable to the Borrower Company and its Subsidiaries (which shall be 100% at any time thatfor so long as such Parent Entity, as the case may be, (x) Holdings beneficially owns no material assets other than the Equity Interests in the Company); (ii) with respect to any taxable period for which the Company is or has been a partnership or disregarded entity for U.S. federal income tax purposes, to any person that (directly or indirectly) held Equity Interests of the Borrower Company during such taxable period (a) to the extent such tax distributions are permitted under (I) the Amended and assets incidental to such equity ownership Restated United States Tax Agreement for NCL Corporation Ltd., dated January 24, 2013 or the Amended and Restated Profits Sharing Agreement for NCL Corporation Ltd., dated January 22, 2013, each as in effect on the Closing Date, (collectively, the “Tax Agreements”) or (yII) any amended version of the Tax Agreements to the extent such amendments are not materially adverse to the Lenders (collectively, the “Amended Tax Agreements”) and (b) to the extent not otherwise permitted under clause (a), tax distributions in respect of audit adjustments resulting from audits of the Company and/or its Subsidiaries commencing after the Closing Date, determined in a manner consistent with and subject to the limitations set forth in the Tax Agreements and the Amended Tax Agreements; and (iii) with respect to any taxable period for which the Company and any Parent Entity owns directly files an affiliated, consolidated, combined or indirectly no material assets other than Equity Interests of Holdings and unitary tax return in any other relevant jurisdiction, distributions to such Parent Entity and assets incidental in amount not to exceed the amount of any Taxes in such equity ownershipjurisdiction that the Company and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Company and/or its Subsidiaries, as applicable, been stand-alone taxpayers in such jurisdiction (less any portion of such amounts directly payable by the Company and/or its Subsidiaries);; provided, that distributions in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Company or any of its Restricted Subsidiaries for such purpose.
(c) Restricted Payments the Company may be made to Holdings, declare and pay dividends or make other distributions (directly or indirectly) the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Company or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year the greater of $48,000,000 150,000,000 and 1% of Consolidated Total Assets (plus (x) the amount of net proceeds contributed to the Borrower Company that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as the Company may pay dividends (idirectly or indirectly) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its equity holders in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower Company elects to apply to this Section 6.06(e(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Company shall be in Pro Forma Compliance;
(f) Restricted Payments the Company may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hg) Restricted Payments the Company may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not no greater than 6.0% per annum of Market Capitalization;
(h) the Company may declare and pay dividends or make other distributions (directly or indirectly) to exceed $100,000,000 for its equity holders if after giving effect to such dividend or distribution, the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date Total Leverage Ratio is equal to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior or less than 3.30 to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);1.00; and
(i) Restricted Payments the Company may be made to Holdings declare and pay dividends or any Parent Entity to finance any Investment that if made by the Borrower make other distributions (directly or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interestsindirectly) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date its equity holders in an aggregate amount not to exceed the greater of $415,000,000 250,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date 1.5% of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Consolidated Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Assets.
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests the common stock of Holdings payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) shares of the person paying such dividends or distributionscommon stock of Holdings) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary the Borrower and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments Holdings and the Borrower may be made effect the Transaction, the IPO Reorganization and transactions related thereto;
(c) the Borrower may declare and pay dividends or make other distributions to Holdings in respect of overhead, tax liabilities (iother than income tax liabilities for which the Borrower is permitted (or would be permitted subject to satisfaction of subclauses (x) overheadand (y) of clause (e) of this Section 6.06) to make distributions pursuant to clause (e) of this Section 6.06) of Holdings, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, CapCo II and (vi) customary salary, bonus Opco GP and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (ipayments permitted by Sections 6.07(b) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(cd) Restricted Payments Holdings and the Borrower may be made purchase or redeem (and the Borrower may declare and pay dividends or make other distributions to Holdings, Holdings the proceeds of which are to be used by Holdings to so purchase or redeem the redeem), directly or indirectly, Equity Interests of Holdings or any Parent Entity BMP/Xxxxxx Holdings (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the their Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s 's death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (cd) shall not exceed in any fiscal calendar year $48,000,000 5,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower, including such amounts received from BMP/Xxxxxx Holdings, during such calendar year from sales of Employee Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation Sales and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, year may be carried forward to any subsequent calendar year; and provided, furtherhowever, that cancellation the aggregate amount of Indebtedness owing such purchases or redemptions that may be made pursuant to this paragraph (d) shall not exceed $15,000,000 (plus the amount of net proceeds received by Holdings or the Borrower, including such amounts received from BMP/Xxxxxx Holdings, after the date of this Agreement from Employee Equity Sales);
(e) for so long as the Borrower or any Subsidiary Holdings is a partnership or substantially similar pass-through entity for federal income tax purposes, cash distributions may be made by the Borrower to Borrower Partners or by Holdings to Holdings Partners, as the case may be, from members time to time in amounts not to exceed the Permitted Tax Amount Distributions of management of Borrower or Holdings, as the case may be, so long as (x) the payments are made at the times permitted by the second sentence of the definition of Permitted Tax Amount Distributions contained herein and (y) no Event of Default exists at the time any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed distribution is made pursuant to constitute a Restricted Payment for purposes of this Section 6.066.06(e) or would exist after giving effect thereto;
(df) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(eg) so long as the Loans have not been accelerated pursuant to Article VII, no Default under Section 7.01(b), (c), (h) or (i) no Default or Event of Default has occurred then exists and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment then exists or distribution on a Pro Forma Basiswould result therefrom, the Net Total Leverage Ratio is not greater than 2.90 Borrower may pay cash dividends to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if Holdings at the date of declaration or times and in the giving of such notice such payment would have complied with amounts necessary to enable Holdings to make the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments cash interest payments due on the Holdings Discount Notes (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made notes issued pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect Holdings Note Refinancing) so long as Holdings immediately thereafter uses such cash dividends to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any make such Restricted Payment (or any portion thereof)cash interest payments.
Appears in 2 contracts
Samples: Credit Agreement (Graham Packaging Holdings Co), Credit Agreement (Graham Packaging Holdings Co)
Dividends and Distributions. Declare Pay, directly or pay indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value any shares of any class of its Equity Interests (or permit any Subsidiary to purchase or acquire) any other than redemptions, purchases, retirements and acquisitions of Equity Interests made solely through the issuance of additional shares of Equity Interests of the Borrower’s Person redeeming, purchasing, retiring or acquiring such Equity Interests Interests) or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Relevant Subsidiary of the Borrower may be made to pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Relevant Subsidiary of the Borrower (or, in the case of non-Relevant Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Relevant Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental or any of its Relevant Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower or, to the extent such equity ownership or (y) Equity Interests were issued as compensation for services rendered on behalf of the Loan Parties, any employee of any Parent Entity owns directly Company, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or indirectly no material assets other than Equity Interests of Holdings partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Relevant Subsidiaries may declare and pay dividends to the Borrower or any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Relevant Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directorsfor such purposes, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 10.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation for the avoidance of Indebtedness owing to doubt the Borrower may make dividends or distributions to its direct or indirect parent to facilitate such direct or indirect parent making any Subsidiary from members of management of Holdingspurchases, any Parent Entity, the Borrower redemptions or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment acquisitions permitted by clause (b) (assuming for purposes of hereof such parent entity is the “Borrower” in this Section 6.06;clause (b)).
(dc) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such optionsoptions shall be permitted;
(ed) so long as (i) provided no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentthen exists or would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments Borrower may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to paypay dividends or make other distributions, or to allow Holdings directly or indirectly redeem, purchase, retire or otherwise acquire for value, its Equity Interests, without duplication, (x) from the proceeds of any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may permitted to be made on or after the Ninth Incremental Assumption under this Agreement and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders (y) in an amount not to exceed $100,000,000 for exceeding the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing amount of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be cash equity contributed to the Borrower as common equity by any direct or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10indirect Parent Company thereof;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(ke) [reserved];
(lf) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment provided no Default or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting then exists or would result therefrom, the Special Dividend; and
(o) Restricted Payments Borrower may be made make a distribution on or after with respect to the Ninth Incremental Assumption and Amendment Agreement Effective Date Equity Interests of the Borrower during any fiscal quarter in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein Available Cash attributable to the contraryBorrower and its Subsidiaries;
(g) dividends, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemptiondistributions, purchaserepurchases, defeasance retirements or other payment acquisitions for value shall be permitted within 60 days after the date of declaration thereof of the dividend, distribution, repurchase, retirement or the giving of noticeother acquisition for value, as applicablethe case may be, if if, at the date of declaration or notice, the giving of such notice such payment dividend, distribution, repurchase, retirement or other acquisition for value would have complied with the provisions of this Agreement. For purposes ;
(h) provided no Event of determining compliance with this covenantDefault then exists or would result therefrom, dividends, distributions, repurchases, retirements or other acquisitions for value shall be permitted to the extent the proceeds are used by Crestwood Equity Partners to pay operating expenses and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), to the extent reasonable and customary, incurred in the ordinary course of business and related to (i) the business of the Borrower and its Subsidiaries, (Aii) the nature of Crestwood Equity Partners as a Restricted Payment holding company, or (iii) the businesses owned by Crestwood Equity Partners prior to the Closing Date; and
(i) provided no Default or portion thereof) need not be permitted solely by reference to one category Event of permitted Restricted Payments (Default then exists or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauseswould result therefrom, the Borrower maymay make dividends, in its sole discretiondistributions, dividerepurchases, classify retirements or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or other acquisition for value for the purpose of funding any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Group Acquisition.
Appears in 2 contracts
Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Dividends and Distributions. Declare or pay Pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (in each case, solely to a holder of Equity Interests in such person’s capacity as a holder of such Equity Interests) (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s or a Subsidiary’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, in each case, to the extent attributable to the ownership or operations of the Borrower and its Subsidiaries, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes Taxes, and other fees and expenses expenses, in connection with the maintenance of its Holdings’ (or any Parent Entity’s) existence and its Holdings’ (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii))) or the last paragraph of Section 6.07, (v) in with respect of to any taxable period year for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower Parent Entity is the common parent, or for which the Borrower is a partnership or disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a Parent Entity that is a C corporation (a “Corporate Parent”) for U.S. federal and/or applicable state state, local or local income foreign tax purposes, distributions to the Tax liability of any direct such Parent Entity or indirect parent of the Borrower Corporate Parent, as applicable, in an aggregate amount not to exceed the amount of any such U.S. federal, state, local or and/or foreign taxes income Taxes that the Borrower and/or its applicable Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup for all applicable taxable years (without duplication, for the avoidance of doubt, of the amount of such Taxes actually directly paid by the Borrower and/or any of its Subsidiaries to the relevant taxing authority, if any); provided, that, the permitted payment pursuant to this clause (v) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes; and (vi) customary salary, bonus bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdingspurchase, the proceeds of which are used to purchase retire or redeem the Equity Interests of the Borrower, Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then any future, present or former directors, consultants, officers or employees (or their respective Immediate Family Members) of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries Subsidiaries, including any repurchase, retirement or by redemption pursuant to any Plan or any shareholders’ agreement or other agreement or arrangement then in effect or upon such person’s death, disability, retirement or termination of employment or under the terms to cover such person’s payment of any such Plan or any other agreement under which such shares of stock or related rights were issuedwithholding taxes in connection therewith; provided, that the aggregate amount of such purchases purchases, retirements or redemptions under this clause (c) shall not exceed in any fiscal calendar year $48,000,000 30,000,000 (plus an amount equal to (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangementsthat occur after the Closing Date; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received by the Borrower or any Subsidiary during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or the Subsidiaries any Subsidiary in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any calendar year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from any present or former members of management management, directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or its Subsidiaries any Subsidiary in connection with a repurchase of Equity Interests of the Borrower, Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default shall have occurred and be continuing;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including payments and distributions to dissenting stockholders or stockholders exercising appraisal rights pursuant to applicable law or as a result of the settlement of any stockholder claims or action (whether actual, contingent or potential);
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date of up to pay, or to allow Holding or $150,000,000 in any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)calendar year;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Permitted Business Acquisition, New Project or other acquisition or Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Permitted Business Acquisition, New Project or other acquisition or Investment and (B) Holdings or such parent Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition Acquisition, New Project or other acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 133,000,000 and 0.15 0.25 times the Adjusted EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Payment; provided, provided that no Event of Default shall have occurred and be continuing;
(k) [reserved];
payments of dividends on (land pursuant to the terms of) Restricted Payments may be made Disqualified Stock of the Borrower issued in compliance with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00Section 6.01; provided, provided that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(ol) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date (i) in an aggregate amount not to exceed $600,000,000the aggregate amount of Excluded Contributions or (ii) without duplication of clause (i), in an amount not to exceed the net proceeds from an Asset Sale or other Disposition in respect of property or assets acquired after the Closing Date, to the extent the acquisition of such property or assets was financed with Excluded Contributions;
(m) any Restricted Payment may be made, so long as no Event of Default has occurred and is continuing or would result therefrom and, after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 2.50 to 1.00; and
(n) any consideration, payment, dividend, distribution or other transfer in respect of Securitization Fees or in connection with a Permitted Securitization Financing or a receivables financing may be made. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment or redemption, purchase, defeasance or other payment would have complied with the provisions of this Agreement. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the fair market value thereof, which shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Restricted Payment or as of the date of the definitive agreement with respect to such Restricted Payment. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent shareholder of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable statethe relevant jurisdiction of Holdings (or any Parent Entity) attributable to Holdings, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, Subsidiaries and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as Holdings or such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 20 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity of Holdings to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect the Borrower may pay dividends to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Holdings in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Borrower and its Subsidiaries shall be in Pro Forma Compliance;
(f) Restricted Payments the Borrower may be made in connection with pay dividends on the consummation of Closing Date to consummate the ADT Transactions;
(g) Restricted Payments the Borrower may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments the Borrower may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);Borrower; and
(i) Restricted Payments the Borrower may be made make distributions to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation merger (to the extent permitted in Section 6.05) of the person Person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Second Lien Bridge Credit Agreement (Berry Global Group Inc), Second Lien Bridge Credit Agreement (Berry Global Group Inc)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments the Borrower and any Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its each of the Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or held by any Plan current or former officer, director, consultant, or employee (or persons holding similar positions or performing similar functions for non-corporate entities) of the Borrower or any Subsidiary of the Borrower or, to the extent such Equity Interests were issued as compensation for services rendered on behalf of the Borrower or any Subsidiary of the Borrower, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement then in effect upon such person’s deathor similar agreement, disability, retirement plan or termination of employment arrangement or under any Plan and the terms of any such Plan Borrower and Subsidiaries may declare and pay dividends to the Borrower or any other agreement under Subsidiary of the Borrower the proceeds of which are used for such shares of stock or related rights were issued; providedpurposes, provided that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year U.S. $48,000,000 3,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees (or persons holding similar positions or performing similar functions for non-corporate entities) of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(ed) so long as (i) provided no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentthen exists or would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 Borrower may declare and pay dividends or make other distributions from the proceeds of any issuance of Equity Interests permitted to 1.00, Restricted Payments may be made in an aggregate amount equal under this Agreement;
(e) the Borrower may from time to time declare or make a portion distribution on or with respect to the Equity Interests of the Cumulative Credit on the date Borrower during any fiscal quarter provided no Default or Event of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedDefault then exists or would result therefrom;
(f) Restricted Payments Frank’s International C.V. may be made in connection with reimburse FIMBV for all costs and expenses incurred by FIMBV that are directly attributable to the consummation operation of the ADT Transactions;Frank’s International C.V., including costs for engaging third parties such as consultants, attorneys and accountants; and
(g) Restricted Payments Frank’s International C.V. may be made to payreimburse FINV for all of its general, or to allow Holdings or any Parent Entity to make paymentsadministrative, in cashoverhead and other indirect costs and expenses, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
including (i) Restricted Payments may be made those costs and expenses attributable to Holdings or any Parent Entity operating as a publicly traded company, (ii) costs of securities offerings, (iii) board of directors compensation and meeting costs, (iv) costs of periodic reports to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; providedshareholders, that (Av) such Restricted Payment shall be made substantially concurrently with the closing of such Investment litigation costs and damages arising from litigation, (vi) accounting and legal costs and (Bvii) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)franchise taxes.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Frank's International N.V.), Revolving Credit Agreement (Frank's International N.V.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in (x) with respect of any taxable period for which to each tax year or portion thereof that the Borrower and/or any qualifies as a Flow Through Entity, the Borrower may declare and pay dividends or make other distributions to the holders of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent Equity Interests of the Borrower is the common parent, (or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower or holders of Equity Interests in such parent); and (y) with respect to any tax year or portion thereof that the Borrower does not qualify as a Flow Through Entity, the Borrower may declare and pay dividends or make other distributions to any direct or indirect parent company of the Borrower that files a consolidated U.S. federal tax return that includes the Borrower and its subsidiaries, in each case in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or and its Subsidiaries, as applicable, Subsidiaries would have paid for been required to pay in respect of federal, state or local taxes (as the case may be) in respect of such taxable period had year if the Borrower and/or and its Subsidiaries, Subsidiaries paid such taxes directly as applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate group, ) (and deeming the Borrower to be a taxpaying corporation and parent of a group if it is a Flow Through Entity) and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as Holdings or such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings, or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity of Holdings to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect the Borrower may pay dividends to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Holdings in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Borrower and its Subsidiaries shall be in Pro Forma Compliance;
(f) Restricted Payments the Borrower may be made in connection with pay dividends on the consummation of Closing Date to consummate the ADT Transactions;
(g) Restricted Payments the Borrower may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;; and
(h) Restricted Payments after a Qualified IPO, the Borrower may be made on or after the Ninth Incremental Assumption pay dividends and Amendment Agreement Effective Date make distributions to pay, or to allow Holding Holdings so that Holdings or any Parent Entity to pay, may pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to public offering of Equity Interests of Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Entity.
Appears in 2 contracts
Samples: Credit Agreement (Verso Sartell LLC), Credit Agreement (Verso Paper Holdings LLC)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests of the Borrowers (other than dividends and distributions on such Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributionsBorrowers) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any Equity Interests of the Borrower’s Equity Interests Borrowers or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, a “Restricted PaymentsPayment”); provided, however, that:
(a) the Borrowers may make Restricted Payments may be made so long as, immediately before and after giving effect to such Restricted Payment, the Borrower or any Wholly Owned Subsidiary of Borrowers are in Pro Forma Compliance with the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests)Applicable Conditions;
(b) the Borrowers may make Restricted Payments may as shall be made in respect of necessary to allow Parent (or any Parent Entity) (i) to pay operating expenses in the ordinary course of business and other corporate overhead, legal, accounting and other professional fees and expenses (including, without limitation, those owing to third parties plus any customary indemnification claims made by directors, officers, employees, members of Holdings management and consultants of Parent (or any Parent Entity), including, without duplication, Public Company Costs attributable to the ownership or operations of Parent, the Borrowers and the Restricted Subsidiaries), (ii) to pay fees and expenses related to any public offering debt or private placement of Equity Interests equity offering, investment or debt securities of Holdings or any Parent Entity acquisition expressly permitted hereunder (whether or not consummatedsuccessful), (iii) to pay franchise and or similar taxes Taxes and other fees and expenses required in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerLead Borrower and in order to permit Parent to make payments (other than cash interest payments) which would otherwise be permitted to be paid by the Borrowers under Section 6.07(b), (iv) payments to finance any Investment permitted by to be made under Section 6.07(b6.04; provided, that (A) such Restricted Payments under this clause (other than Section 6.07(b)(vii))iv) shall be made substantially concurrently with the closing of such Investment and (B) the Parent Entity shall, immediately following the closing thereof cause all property acquired to be contributed to a Borrower or one (1) of the Restricted Subsidiaries or the merger of the person formed or acquired into the Borrowers or one (1) of the Restricted Subsidiaries in order to consummate such Investment; and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) pay customary salary, bonus and other benefits payable to, and indemnities provided on behalf ofto directors, officers, directors and employees employees, members of Holdings management or any consultants of Parent Entity, in each case in order to permit Holdings or any Parent Entity to make the extent such payments; providedsalary, that in the case of subclauses (i) bonuses and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) other benefits are directly attributable and (iii) that are allocable reasonably allocated to the operations of a Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)Restricted Subsidiaries;
(c) so long as (x) no Default or Event of Default then exists or would result therefrom and (y) after giving effect to such Restricted Payment, the Borrowers are in Pro Forma Compliance, the Borrowers may make Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem (i) the Equity Interests of Holdings Parent or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultantsofficers, officers employees, members of management or employees consultants of any Parent Entity, Holdings, the Lead Borrower or any of its Subsidiaries (or the Subsidiaries estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) or by any Plan or any shareholders’ agreement then in effect upon such person’s deathPlan, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions Restricted Payments under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15.0 million (with any unused amounts carried forward to the immediately succeeding fiscal year) (plus (x) the sum of the amount of (A) net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity a Borrower during such calendar fiscal year from sales of Equity Interests of Holdings Parent or any Parent Entity to directors, consultantsofficers, officers employees, members of management or employees consultants of HoldingsParent, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided(or the estate, that such proceeds are not included in heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any determination of the Cumulative Creditforegoing), or any Plan and (yB) the amount of net proceeds of any key-man life insurance policies received during such calendar fiscal year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any the next subsequent calendar year; fiscal year and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase (ii) fractional shares of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06Interests;
(d) any person may make non-cash repurchases of Equity Interests in Parent (or any Parent Entity), any Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or similar Equity Interests if such repurchased Equity Interests represent a portion of the exercise price of such optionsoptions or taxes to be paid in connection therewith;
(e) so long as any Borrower may make Restricted Payments to Parent in an aggregate amount equal to (i) the portion, if any, of the Available Basket Amount on the date of such election that a Borrower elects to apply to this Section 6.06(e)(i) plus (ii) the portion, if any, of the Excluded Contributions on the date of such election that a Borrower elects to apply to this Section 6.06(e)(ii); provided that, with respect to the foregoing clause (i), (x) no Default or Event of Default has occurred and is continuing continuing, (y) the Borrowers are in Pro Forma Compliance and (z) the Total Leverage Condition is satisfied;
(f) any Borrower and any Restricted Subsidiary of any Borrower may make Restricted Payments to any direct or indirect owner that is a member of an affiliated group of corporations that files a consolidated U.S. federal tax return or other combined or uniting group return for state and local income Taxes with the Borrowers, or that otherwise files a tax return that includes the income of such Borrower or Restricted Subsidiary, in order to permit such owner to pay U.S. federal, state, local or foreign Taxes, as the case may be, not payable directly by such Borrower or Restricted Subsidiary (the “Tax Distributions”), provided that, such Tax Distributions shall not exceed the amount that such Borrower or such Restricted Subsidiary would have been required to pay in respect of federal, state, local or foreign Taxes, as the case may be, in respect of such year if such Borrower or such Restricted Subsidiary had paid such Taxes directly as a stand-alone taxpayer or in respect of a stand-alone group;
(g) [Reserved];
(h) to the extent constituting a Restricted Payment, the Borrowers and the Restricted Subsidiaries may enter into the transactions expressly permitted by Section 6.04 (other than Section 6.04(o)), Section 6.05 (other than Section 6.05(e)) or Section 6.07 (ii) and (ix);
(i) the proceeds of which shall be used by Parent to make (or to make a Restricted Payment to any Parent Equity to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Parent or any Parent Equity;
(j) payments made or expected to be made by any Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management or consultants of any Borrower (or any Parent Entity) or any of its Restricted Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of the foregoing) and any repurchases of Equity Interest in consideration of such payments including demand repurchases in connection with the exercise of stock options;
(k) so long as (x) no Default or Event of Default then exists or would result therefrom and (y) after giving effect to such Restricted PaymentPayment the Borrowers are in Pro Forma Compliance, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Borrowers may make Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 5.0 million in any fiscal year and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with 25.0 million in the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);aggregate; and
(il) Restricted Payments may be made to Holdings redemptions, repurchases, retirements or other acquisitions of Equity Interests of any Borrower or any Parent Entity in exchange for, or out of the proceeds of the substantially concurrent sale (other than to finance a Borrower or a Restricted Subsidiary) of, Equity Interests of any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation Parent Entity (to the extent permitted in Section 6.05the proceeds of such sale are contributed to the capital of a Borrower) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, (in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that than any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(mDisqualified Capital Stock) (such clause, the “Restricted Payments Incurrence ClauseRefunding Capital Stock”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.), Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity Entity, whether or not consummated, (iii) franchise and similar taxes Taxes and other fees and expenses in connection with the maintenance of its Holdings’ or Parent’s (or any Parent Entity’s) existence and its Holdings’ or Parent’s (or any Parent Entity’s indirect) ownership of the Borrower, (iv) (1) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (2) to fund payments in respect of any agreements and arrangements of Holdings, Parent or any other Parent Entity in existence on the Closing Date, so long as copies of such agreements and arrangements have been provided to the Administrative Agent (or its counsel) prior to the Closing Date and/or (3) to fund payment obligations substantially similar to the types of payments of Holdings, Parent or any other Parent Entity described in clause (2) above, (v) (a) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax Tax group for U.S. federal and/or applicable state, local or foreign tax Tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax Tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state state, local or local income tax foreign Tax purposes, distributions Restricted Payments to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or and/or foreign taxes income Taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup and (b) in respect of any taxable period for which the Borrower is a partnership or disregarded entity for U.S. federal and/or applicable state, local or foreign Tax purposes (other than a partnership or disregarded entity described in clause (a)), Restricted Payments to any direct or indirect parent of the Borrower in an amount necessary to permit such direct or indirect parent of the Borrower to pay or to make a pro rata distribution to its owners such that each direct or indirect owner of the Borrower receives an amount from such pro rata distribution sufficient to enable such owner to pay its U.S. federal, state, local and/or foreign income Taxes (as applicable) attributable to its direct or indirect ownership of the Borrower and its Subsidiaries with respect to such taxable period (assuming that each owner is subject to Tax at the highest combined marginal federal, state, local and/or foreign income Tax rate applicable to any owner for such taxable period and taking into account the deductibility of state and local income Taxes for U.S. federal income Tax purposes (and any limitations thereon)), and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its the Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x1) Holdings Parent and Holding owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y2) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Parent, Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Borrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings Holdings, Parent, or any Parent Entity (including related stock appreciation rights or similar securities) held by then present future, current or former directors, consultants, officers officers, members of management or employees (and their respective estates, heirs, family members, spouses, domestic partners, former spouses or former domestic partners) of any Parent Entity, Parent, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issuedissued or otherwise; provided, that the aggregate amount of such purchases or redemptions under this clause (c) purchased other than upon such person’s death, disability, retirement or termination of employment or pursuant to any Plan or stock rights agreement shall not exceed in any fiscal year Fiscal Year the greater of $48,000,000 25,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings Holdings, Parent or any Parent Entity during such calendar year from sales of Equity Interests of Holdings Holdings, Parent or any Parent Entity to directors, consultants, officers or employees of Parent, Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, are not proceeds from the issuance of Permitted Cure Securities, and were not utilized under Sections 6.04(q) or 6.09(b)(i)(C), (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from officers, directors and members of management of Holdings, any Parent Entity, the Borrower or its the Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of (X) the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which ) plus (Y) the Available Excluded Contribution Amount on the date of such election shall (unless such that the Borrower elects to apply to this Section 6.06(e); provided, that with respect to Restricted Payment is Payments made pursuant to clause (a) the Starter Basket or the Growth Amount, no Event of the definition of “Cumulative Credit”) Default shall have occurred and be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedcontinuing;
(f) Restricted Payments may be made in connection with the consummation of the ADT TransactionsTransactions or any Reorganization, including payments and distributions to dissenting stockholders or stockholders exercising appraisal rights pursuant to applicable law;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not per annum equal to exceed $100,000,000 for 7.0% of the period gross cash proceeds received from the Ninth Incremental Assumption IPO and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each any subsequent fiscal year (commencing with public equity offerings of Parent or the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)applicable Parent Entity;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.105.10 and (C) such Investment shall not be included in the calculation of the Cumulative Credit;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 50,000,000 and 0.15 0.20 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that giving effect to any Restricted Payments reallocation made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this in accordance with Section 6.06(j) shall not use capacity hereunder6.04 or 6.09); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions[reserved];
(m) other Restricted Payments so long asmay be made; provided, immediately that no Specified Event of Default has occurred and is continuing or would result therefrom and after giving effect to such payment or distribution on a Pro Forma BasisRestricted Payment, the Net Total Leverage Ratio is on a Pro Forma Basis would not greater than 2.90 exceed 2.25 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on in respect of any consideration, payment, dividend, distribution or after the Ninth Incremental Assumption and Amendment Agreement Effective Date other transfer in an aggregate amount not to exceed $600,000,000connection with a Permitted Securitization Financing. Notwithstanding anything herein to the contrary, contrary the foregoing provisions of this Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. Furthermore, any Restricted Payment otherwise permitted under this Section 6.06 will not permit any dividend or other distribution of the Equity Interests of any Securitization Entity to any person other than the Borrower or a Guarantor that remains a Guarantor (or any person that will become a Guarantor substantially concurrently with such dividend or distribution). For purposes of determining compliance with this covenantSection 6.06, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses this Section 6.06 but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesthis Section 6.06, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, reclassify (as if incurred at such permitted later time) such Restricted Payment (or any portion thereof) in any manner that complies with this covenant Section 6.06 and at the time of divisionsuch Restricted Payment, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments above clauses (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of and such Restricted Payment (or any portion thereof) that may will be treated as being made or existing pursuant to the Restricted Payments Incurrence Clause shall be made only such clause or clauses (or any portion thereof) without giving pro forma effect to any substantially concurrent Restricted Payment such item (or any portion thereof) dividedwhen calculating the amount of Restricted Payments that may be made, classified or reclassified under pursuant to any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment clause (or any portion thereof)) at such time.
Appears in 2 contracts
Samples: Credit Agreement (Driven Brands Holdings Inc.), Credit Agreement (Driven Brands Holdings Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or and (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 25,000,000 (which shall increase to $50,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and after giving effect thereto, the Net First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 3.50 to 1.0;
(f) Restricted Payments may be made on the Closing Date in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any a Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment dividend or distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing25,000,000;
(k) [reservedReserved];; or
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, under the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Operations Management Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Purchase Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: First Lien Credit Agreement (McGraw-Hill Interamericana, Inc.), First Lien Credit Agreement (McGraw-Hill Global Education LLC)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Holdings’ Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower Holdings or any Wholly Owned Subsidiary of the Borrower Holdings (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Holdings or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Holdings or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerHoldings, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupPermitted Tax Distributions, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower Holdings and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) that any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity that owns no material assets other than Equity Interests in Holdings and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, by Holdings the proceeds of which are used (directly or indirectly by way of Restricted Payments to any Parent Entity) to purchase or redeem the Equity Interests of Holdings or any such Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Borrowers or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 20,000,000 (which shall increase to $40,000,000 subsequent to a Qualified IPO) plus (x) the amount of net proceeds received by or contributed to the Borrower Holdings that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers officers, or employees of Holdings, any Parent Entity, the Borrower Borrowers or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative CreditCredit or as part of any Excluded Contribution, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower Borrowers or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if which aggregate amount to the extent not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower Holdings or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower Borrowers or its the Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise or settlement of stock options or other equity-based awards if such Equity Interests represent a portion of the exercise price of of, or withholding obligation with respect to, such optionsoptions or other equity-based awards;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower Representative elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the BorrowerBorrower Representative, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Event of Default shall have occurred and be continuing; provided, further, that with respect to Restricted Payments to be made to the Fund or any Fund Affiliate, the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to any use of the Cumulative Credit pursuant to this clause (e) is not greater than 4.50 to 1.00;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including the payment of the appraised value of any Appraisal Shares (as defined in the Merger Agreement) in accordance with the Merger Agreement;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for per annum no greater than 6.0% of the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Market Capitalization;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower Holdings or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Holdings or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower Holdings or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)50,000,000; provided, that no Event of Default shall have occurred and be continuing; provided, further, that with respect to Restricted Payments to be made to the Fund or any Fund Affiliate, the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such Restricted Payments pursuant to this clause (j) is not greater than 4.50 to 1.00;
(k) [reserved];; and
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Restricted Payments Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Restricted Subsidiary of the Borrower (orwhich, in the case of non-Wholly Owned Subsidiaries, shall be made (x) to the Borrower or any Restricted Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests or (y) to the extent required by agreements set forth on Schedule 6.07);
(b) Restricted Payments the Borrower may declare and pay dividends or make other distributions as shall be made in respect of necessary to allow Holdings (or any Parent Entity)
(i) to pay operating expenses in the ordinary course of business and other corporate overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) to pay fees and expenses related to any public offering debt or private placement of Equity Interests equity offering, investment or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummatedsuccessful), (iii) to pay franchise and or similar taxes and other fees and expenses reasonably required in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerBorrower and in order to permit Holdings to make payments (other than cash interest payments) which would otherwise be permitted to be paid by the Borrower under Section 6.07(b), (iv) payments to finance any Investment permitted by to be made under Section 6.07(b6.04; provided, that (A) such dividend or distribution under this clause (other than Section 6.07(b)(vii))iv) shall be made substantially concurrently with the closing of such Investment and (B) the Parent Entity shall, immediately following the closing thereof cause all property acquired to be contributed to the Borrower or one of its Restricted Subsidiaries or the merger of the person formed or acquired into the Borrower or one of its Restricted Subsidiaries in order to consummate such Investment; and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes proceeds of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) shall be used by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions any Parent Entity to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) pay customary salary, bonus and other benefits payable to, and indemnities provided on behalf ofto directors, officers, directors and employees employees, members of Holdings management or any Parent Entity, in each case in order to permit Holdings or any consultants of the Parent Entity to make the extent such payments; providedsalary, that in bonuses and other benefits are directly attributable and reasonably allocated to the case operations of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)Subsidiaries;
(c) Restricted Payments the Borrower may be made to Holdings, declare and pay dividends or make other distributions the proceeds of which are used to purchase or redeem (i) the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultantsofficers, officers employees, members of management or employees consultants of any Parent Entity, Holdings, the Borrower or any of its Subsidiaries (or the Subsidiaries estate, heirs, family members, spouse or former spouse of any of the foregoing) or by any Plan or any shareholders’ agreement then in effect upon such person’s deathPlan, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 8.625 million (plus the sum of the amount of (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar fiscal year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultantsofficers, officers employees, members of management or employees consultants of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided(or the estate, that such proceeds are not included in heirs, family members, spouse or former spouse of any determination of the Cumulative Creditforegoing), or any Plan and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar fiscal year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any the next subsequent calendar year; fiscal year and provided, further, that cancellation (ii) fractional shares of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06stock;
(d) any person the Borrower may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or similar Equity Interests if such repurchased Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default the Borrower may pay dividends or Event of Default has occurred and is continuing and (ii) after giving effect make distributions to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Holdings in an aggregate amount equal to a portion (i) $40.25 million plus (ii) the portion, if any, of the Cumulative Credit Available Basket Amount on the date of such election that the Borrower elects to apply to this Section 6.06(e6.06(e)(ii); provided that, which such election shall (unless such Restricted Payment is made pursuant with respect to clause (aii), at the time of such dividend or distribution and after giving effect thereto and to any borrowing in connection therewith, the Total Senior Secured Leverage Ratio on a Pro Forma Basis does not exceed 5.50:1.00 and, with respect to both clause (i) and clause (ii), no Default or Event of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election Default has occurred and the amount thereof elected to be so appliedis continuing;
(f) Restricted Payments the Borrower and any Subsidiary may be made in connection pay dividends or other distributions to any direct or indirect member of an affiliated group of corporations that files a consolidated U.S. federal tax return with the consummation Borrower in accordance with the Tax Sharing Agreement (the “Tax Distributions”), provided that, such Tax Distributions shall not exceed the amount that the Borrower or the Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the ADT Transactionscase may be, in respect of such year if the Borrower or the Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group;
(g) Restricted Payments the Borrower may be made to pay, or to allow Holdings or make dividends and distributions with the net proceeds of any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon Qualified Capital Stock after the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;Closing Date; and
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent constituting a dividend and other distribution permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses6.06, the Borrower may, in and its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such Restricted Subsidiaries may enter into the transactions expressly permitted Restricted Payment by Section 6.05 (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause Section 6.05(e)) or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Section 6.07.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted Payments may be made to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 7.04);
(b) the Borrower may make Restricted Payments may be made to US Holdings I in respect of (i) overhead, legal, accounting and other professional fees and expenses of the US Holdings or any Parent EntityI, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of US Holdings or any Parent Entity I whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) US Holdings I’s existence and its (or any Parent EntityUS Holdings I’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as US Holdings I owns no assets other than the Equity Interests in the Borrower) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local or foreign tax purposes the relevant jurisdiction of which a direct or indirect parent of US Holdings I attributable to the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of US Holdings I incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosing Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of US Holdings or any Parent EntityI, in each case in order to permit US Holdings or any Parent Entity I to make such payments; providedprovided that, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as US Holdings I, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) the Borrower may make Restricted Payments may be made to HoldingsUS Holdings I, the proceeds of which are used to purchase or redeem redeem, directly or indirectly, the Equity Interests of US Holdings I, Holdco II B.V., or any Parent Entity (including related stock appreciation rights or similar securities) ), in each case held by then present or former directors, consultants, officers or employees of the Holdcos, any Parent Entity, Holdings, the Borrower or any of the its Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 1,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings the Holdcos or any Parent Entity during such calendar year from sales of Equity Interests of Holdings the Holdcos or any Parent Entity to directors, consultants, officers or employees of Holdingsthe Holdcos, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, year and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdingsthe Holdcos, any Parent Entity, the Borrower or the its Subsidiaries in connection with the ADT Transactions Transaction that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year); and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdingsthe Holdcos, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings the Holdcos or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.067.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(e) so long as the Borrower may make (i) no Default or Event of Default has occurred and Restricted Payments in an amount equal to any Availability Cure Contributions so long as, after giving effect to any such repayment, Availability is continuing not less than the Minimum Level 1 Availability and (ii) Restricted Payments in an amount equal to any contributions made by an Affiliate of the Borrower to the Borrower on or prior to the Closing Date to permit the Borrower to satisfy the Availability condition set forth in Section 5.02(i); provided that any such Restricted Payment may only be made if, after giving pro forma effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may Availability would be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall at least $25,000,000 million for five (unless such Restricted Payment is made pursuant to clause (a5) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedconsecutive Business Days;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactionsdistributions contemplated by (and subject to) Section 7.04(cc);
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person[Reserved];
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)[Reserved];
(i) the Borrower may make Restricted Payments may be made to Holdings the Holdcos or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person Person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(j) other the Borrower may make Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on Payments to the Holdcos or after the Ninth Incremental Assumption and Amendment Agreement Effective Date any Parent Entity in an aggregate amount necessary to fund payments to the Fund and the Fund Affiliates of the type and in amounts otherwise permitted pursuant to Sections 7.07(b)(ix) and (xiv); provided that such payments are not to exceed made directly by the greater Borrower or any of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to its Subsidiaries;
(k) Restricted Payments made within 60 days after the date of declaration thereof, if at the date of declaration such payment would have been permitted under (and was counted against any applicable basket under) this Agreement;
(l) the Borrower may make Restricted Payments in an amount equal to any Excess Cash Flow attributable to the Borrower which is required to be used to repay Indebtedness incurred pursuant to Section 7.01(b)(ii) and Section 7.01(b)(iii) so long as, prior to making any such Restricted Payment Payment, the Borrower shall have delivered to the Administrative Agent calculations and other supporting information reasonably acceptable to the Administrative Agent supporting the attribution of such amount of Excess Cash Flow to the Borrower; and
(it being understood that m) any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(jPayment; provided that (A) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
continuing or would result therefrom, (kB) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long asthe Availability, immediately both after giving effect to such payment or distribution Restricted Payment and at all times during the 60 calendar days immediately prior to such Restricted Payment, in each case on a Pro Forma Basis, the Net Total Leverage Ratio is not would be, and was, greater than 2.90 the Minimum Level 5 Availability and (C) the Fixed Charge Coverage Ratio, on a Pro Forma Basis both before and after giving effect to 1.00; providedsuch Restricted Payment, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other less than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)1.1:1.0.
Appears in 2 contracts
Samples: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent shareholder of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees relevant jurisdiction of Holdings (or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made attributable to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Second Lien Bridge Credit Agreement, Second Lien Bridge Credit Agreement
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments the Borrower and any Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its each of the Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or held by any Plan current or former officer, director, consultant, or employee (or persons holding similar positions or performing similar functions for non corporate entities) of the Borrower or any Subsidiary of the Borrower or, to the extent such Equity Interests were issued as compensation for services rendered on behalf of the Borrower or any Subsidiary of the Borrower, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement then in effect upon such person’s deathor similar agreement, disability, retirement plan or termination of employment arrangement or under any Plan and the terms of any such Plan Borrower and Subsidiaries may declare and pay dividends to the Borrower or any other agreement under Subsidiary of the Borrower the proceeds of which are used for such shares of stock or related rights were issued; providedpurposes, provided that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year U.S. $48,000,000 3,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees (or persons holding similar positions or performing similar functions for non corporate entities) of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(ed) so long as (i) provided no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentthen exists or would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 Borrower may declare and pay dividends or make other distributions from the proceeds of any issuance of Equity Interests permitted to 1.00, Restricted Payments may be made in an aggregate amount equal under this Agreement;
(e) the Borrower may from time to time declare or make a portion distribution on or with respect to the Equity Interests of the Cumulative Credit on the date Borrower during any fiscal quarter provided no Default or Event of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedDefault then exists or would result therefrom;
(f) Restricted Payments Frank’s International C.V. may be made in connection with reimburse FIMBV for all costs and expenses incurred by FIMBV that are directly attributable to the consummation operation of the ADT Transactions;Frank’s International C.V., including costs for engaging third parties such as consultants, attorneys and accountants; and
(g) Restricted Payments Frank’s International C.V. may be made to payreimburse FINV for all of its general, or to allow Holdings or any Parent Entity to make paymentsadministrative, in cashoverhead and other indirect costs and expenses, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
including (i) Restricted Payments may be made those costs and expenses attributable to Holdings or any Parent Entity operating as a publicly traded company, (ii) costs of securities offerings, (iii) board of directors compensation and meeting costs, (iv) costs of periodic reports to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; providedshareholders, that (Av) such Restricted Payment shall be made substantially concurrently with the closing of such Investment litigation costs and damages arising from litigation, (vi) accounting and legal costs and (Bvii) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)franchise taxes.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (Frank's International N.V.), 364 Day Revolving Credit Agreement (Frank's International N.V.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-non Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overheadi)overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in (x) with respect of any taxable period for which to each tax year or portion thereof that the Borrower and/or any qualifies as a Flow Through Entity, the Borrower may declare and pay dividends or make other distributions to the holders of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent Equity Interests of the Borrower is the common parent, (or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower or holders of Equity Interests in such parent); and (y) with respect to any tax year or portion thereof that the Borrower does not qualify as a Flow Through Entity, the Borrower may declare and pay dividends or make other distributions to any direct or indirect parent company of the Borrower that files a consolidated U.S. federal tax return that includes the Borrower and its subsidiaries, in each case in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or and its Subsidiaries, as applicable, Subsidiaries would have paid for been required to pay in respect of federal, state or local taxes (as the case may be) in respect of such taxable period had year if the Borrower and/or and its Subsidiaries, Subsidiaries paid such taxes directly as applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate group, ) (and deeming the Borrower to be a taxpaying corporation and parent of a group if it is a Flow Through Entity) and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as Holdings or such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings, or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity of Holdings to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect the Borrower may pay dividends to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Holdings in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Borrower and its Subsidiaries shall be in Pro Forma Compliance;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;[Reserved]
(g) Restricted Payments the Borrower may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;; and
(h) Restricted Payments after a Qualified IPO, the Borrower may be made on or after the Ninth Incremental Assumption pay dividends and Amendment Agreement Effective Date make distributions to pay, or to allow Holding Holdings so that Holdings or any Parent Entity to pay, may pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to public offering of Equity Interests of Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Entity.
Appears in 2 contracts
Samples: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary subsidiary of the Borrower to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoingforegoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, “Restricted PaymentsDividends”); provided, however, that:
(a) Restricted Payments (i) any Subsidiary may be made to the Borrower declare and pay dividends to, or any Wholly Owned Subsidiary of the Borrower (ormake other distributions to, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); and (ii) to the extent permitted by Section 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options options, warrants or other securities convertible or exchangeable for Equity Interests if such Equity Interests represent a portion of the exercise exercise, conversion or exchange price of such optionsthereof;
(ec) so long as (i) no Default or Event any person may make distributions to minority shareholders of Default has occurred and any subsidiary that is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal acquired pursuant to a portion of the Cumulative Credit on the date Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with respect to shares of such election that subsidiary held by such shareholders; and
(d) the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) or any Subsidiary may make payments of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to paycash, or dividends, distributions or advances to allow Holdings or any Parent Entity such person to make payments, in payments of cash, in lieu of the issuance of fractional shares, shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person; provided, however, that the aggregate amount of such payments, dividends, distributions or advances payable under this clause (d) in cash shall not exceed, when taken together with the amounts under clause (g) below, the greater of $5,000,000 and 2.5% of Net Receivables Financing Profit as of the last day of the most recently ended Test Period; provided that the aggregate amount of such Dividends shall not exceed $25,000,000;
(e) any Loan Party or Subsidiary thereof may make payments and distributions in respect of the Transactions, to the extent constituting a Dividend;
(f) the Borrower may declare and pay Dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Stock);
(g) the Borrower may make Dividends pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries (including, without limitation, redemptions or repurchases of Equity Interests (i) deemed to occur upon exercise of options or warrants or similar rights by the delivery of Equity Interests in satisfaction of the exercise price such options or warrants or similar rights or (ii) in consideration of withholding or similar taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing)) provided, however, that the aggregate amount under this clause (g) shall not exceed, when taken together with the amounts under clause (d) above, the greater of $5,000,000 and 2.5% of Net Receivables Financing Profit as of the last day of the most recently ended Test Period; provided that the aggregate amount of such Dividends shall not exceed $25,000,000;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with may make additional Dividend payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,0002,500,000 so long as no Default or Event of Default has occurred and is continuing or would occur; and
(i) to the extent constituting a Dividend or Distribution, any payments of cash and/or Equity Interests (other than Disqualified Stock) of the Borrower to a holder of the Closing Date Subordinated Convertible Note (or for the benefit of a holder of the Closing Date Subordinated Convertible Note) upon the conversion thereof in accordance with the terms thereof; provided that any payments in cash, either must be (x) from proceeds of issuances after the Closing Date of Equity Interests (other than Disqualified Stock and to the extent not otherwise applied) in the Borrower or (y) permitted to be paid pursuant to Section 6.09(b)(i)(F)(ii). Notwithstanding anything herein to the contrarycontrary contained in this Section 6.06, commencing on the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesSecond Amendment Effective Date, the Borrower mayand its Subsidiaries shall not utilize clauses (a)(ii), in its sole discretion(c), divide(d), classify or reclassify(g), or later divide, classify or reclassify, such permitted Restricted Payment and (or any portion thereofh) in any manner that complies with this covenant and at above without the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one prior written consent of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Required Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Centric Brands Inc.), Credit Agreement (Centric Brands Inc.)
Dividends and Distributions. (i) Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions), or (ii) or directly or indirectly redeem, purchase, retire retire, obtain the surrender of or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted Payments may be made to to, or repurchase its Equity Interests from, the Borrower or to any Wholly Wholly-Owned Subsidiary of the Borrower (or, in the case of non-Wholly Wholly-Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) the Borrower or any other direct Subsidiary of Holdings may make Restricted Payments may be made to Holdings (i) in respect of (i) reasonable overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent EntityEntity (other than in respect of expenses of the type referred to in subclause (iv) below), (ii) in respect of fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity Entity, whether or not consummated, in which the proceeds are (or are intended to be, in the event such transaction is not consummated) contributed to the Borrower or such Subsidiary, (iii) in respect of franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerBorrower or such Subsidiary, (iv) payments permitted by Section 6.07(b(x) (other than Section 6.07(b)(vii)), (v) in with respect of any taxable period for which to each tax year or portion thereof ending after the Closing Date that the Borrower and/or any or such Subsidiary qualifies as a Flow Through Entity, the Borrower or such Subsidiary may make Restricted Payments to the holders of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent Equity Interests of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned such Subsidiary (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower or such Subsidiary or holders of Equity Interests in such parent), and (y) with respect to any tax year or portion thereof ending after the Closing Date that the Borrower or such Subsidiary does not qualify as a Flow Through Entity, the Borrower or such Subsidiary may make Restricted Payments to any direct or indirect parent company of the Borrower or such Subsidiary that files a consolidated U.S. federal, state or local income tax return that includes the Borrower or such Subsidiary and its Subsidiaries, in each case in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or or such Subsidiary and its Subsidiaries, as applicable, Subsidiaries would have paid for been required to pay in respect of federal, state or local income taxes (as the case may be) payable on such taxable period had returns in respect of such year if the Borrower and/or or such Subsidiary and its Subsidiaries, Subsidiaries paid such taxes directly as applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate group) (and deeming the Borrower or such Subsidiary to be a corporation and parent of a group if it is a Flow Through Entity), and (viv) in respect of customary salary, bonus and other benefits benefits, payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses clauses (i), (iii) and (iiiv), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (iii) and (iiiv) that are allocable to the Borrower and its the Subsidiaries (which shall be 100% at any time thatfor so long as Holdings or such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) the Borrower or any other direct Subsidiary of Holdings may make Restricted Payments may be made to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of Holdings, any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.0615.0 million;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default the Borrower or Event any other direct Subsidiary of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Holdings may make Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hf) so long as no Default or Event of Default is continuing or would result therefrom, the Borrower or any other direct Subsidiary of Holdings may make Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding Holdings so that Holdings or any Parent Entity to pay, may pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an aggregate amount not to exceed $100,000,000 for the period from Borrower and such Subsidiaries equal to 4.0% of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 market capitalization of Holdings at the time of such Restricted Payment per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)annum;
(ig) so long as no Default or Event of Default is continuing or would result therefrom, the Borrower or any other direct Subsidiary of Holdings may make Restricted Payments to Holdings or any Parent Entity in an aggregate principal amount for the Borrower and such Subsidiaries that at the time of, and after giving effect to, the incurrence thereof, would not exceed $5.0 million;
(h) the Borrower or any other direct Subsidiary of Holdings may be made make Restricted Payments to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment Investment, and (B) Holdings or such parent Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary Subsidiary, or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(i) [Reserved];
(j) other in addition to the foregoing Restricted Payments, combined with payments the Borrower and distributions under Section 6.09(b)(i)(G), the other Subsidiaries of Holdings may be made on or after make additional Restricted Payments; provided that the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed Payment Conditions are satisfied at the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of time such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)is made; provided, that no Event of Default shall have occurred and be continuing;and
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to as Holdings substantially concurrently contributes the amount of any such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein dividend to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (Borrower or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesSubsidiary Loan Party, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereofother direct Subsidiary of Holdings may make dividends to Holdings for any purpose not expressly prohibited under this Agreement (provided, however, that any contributions made by Holdings under this Section 6.06(k) in any manner that complies with this covenant and at the time of division, classification or reclassification will shall not be entitled used to only include increase the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified available to make payments under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”6.09(b)(i)(C), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Verso Corp), Credit Agreement (Verso Corp)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period (1) for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or (2) for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state state, local or local foreign income tax purposes, distributions in each case, to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or and/or foreign income taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such paymentspayments and (vii) payments in respect of Existing Rackspace Technology Global Indebtedness and Existing Revolving Facility Loans not prohibited by Section 6.09(b); provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x1) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y2) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Borrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 20,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any of the next two subsequent calendar yearyears; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied[Reserved];
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions solely to the extent such Restricted Payments are made substantially concurrently with the consummation of the Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)[reserved];
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary Loan Party (unless otherwise permitted by Section 6.04) or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary Loan Party (unless otherwise permitted by Section 6.04) in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount outstanding not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)10,000,000; provided, that (i) no Event of Default shall have occurred would result therefrom and (ii) no such Restricted Payment shall, directly or indirectly, be continuingmade to the equity holders of Rackspace Technology;
(k) [reserved];
(l) Restricted Payments may be made with in an amount equal to Excluded Contributions;
(m) other Restricted Payments , so long as, as either (i) such Restricted Payment is made within 180 days of receipt of such Excluded Contributions or (ii) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio Restricted Payment is not greater than 2.90 3.10 to 1.00;
(m) [reserved]; provided, that no Event of Default shall have occurred and be continuing;and
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contraryany consideration, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemptionpayment, purchasedividend, defeasance distribution or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied transfer in connection with the provisions of this Agreementa Permitted Securitization Financing. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, divide or classify or (but not reclassify, or later divide, classify or reclassify, ) such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, division or classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: First Lien Credit Agreement (Rackspace Technology, Inc.), Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses sub-clauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses sub-clauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 2,000,000 (which shall increase to $4,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Event of Default shall have occurred and be continuing or would result therefrom and, immediately after giving effect thereto, the Net First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 3.75 to 1.00;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment Payments shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined when taken together with any payments and or distributions under made pursuant to Section 6.09(b)(i)(G6.09(b)(i)(F), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to 10,000,000;
(k) beginning on the contrary, fifth anniversary of the foregoing provisions of Section 6.06 will not prohibit the payment issue date of any Restricted Payment or the consummation of any redemptionPIK Seller Note, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments used to fund cash interest payments or “AHYDO catch-up” payments on such PIK Seller Note; or
(or any portion thereofl) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies made with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Excluded Contributions.
Appears in 2 contracts
Samples: First Lien Credit Agreement (AP Gaming Holdco, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the BorrowerIssuer’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower Issuer or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests)Issuer;
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated[reserved], (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerIssuer, (iv) payments permitted by Section 6.07(b8.07(b) (other than Section 6.07(b)(vii8.07(b)(vii)), (v) in respect of any taxable period for which the Borrower Issuer and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign non-U.S. tax purposes of which a direct or indirect parent of the Borrower Issuer is the common parent, or for which the Borrower Issuer is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower Issuer in an amount not to exceed the amount of any U.S. federal, state, local or foreign non-U.S. taxes that the Borrower Issuer and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower Issuer and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower Issuer and its Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x1) Holdings owns no material assets other than the Equity Interests of in the Borrower Issuer and assets incidental to such equity ownership or (y2) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Issuer);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Issuer or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 2,000,000 (plus (x) the amount of net proceeds contributed to the Borrower Issuer that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Issuer or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower Issuer or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower Issuer or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.068.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied[Reserved];
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions[Reserved];
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);[Reserved]; and
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower Issuer or any Subsidiary directly would be permitted to be made pursuant to Section 6.048.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Issuer or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.058.05) of the person formed or acquired into the Borrower Issuer or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)7.10.
Appears in 2 contracts
Samples: Indenture (Fresh Market Holdings, Inc.), Indenture (Fresh Market Holdings, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) Qualified Capital Stock of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) Qualified Capital Stock of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity the Borrower (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries Subsidiary or by any Plan or any shareholders’ agreement then in effect upon such person’s 's death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 2.5 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to ;
(c) the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests company granted stock awards or options necessary to satisfy obligations attributable to tax withholding, provided that the aggregate amount of Holdings or such repurchases under this paragraph (c) shall not exceed in any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06fiscal year $2.5 million;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects may pay dividends to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an aggregate amount not equal to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that $25.0 million plus (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2ii) the mergerportion, consolidation or amalgamation (to the extent permitted in Section 6.05) if any, of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made Available Investment Basket Amount on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood election that any Restricted Payments made prior the Borrower elects to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant apply to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof6.06(e)(ii).
Appears in 2 contracts
Samples: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests of the Borrowers (other than dividends and distributions on such Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributionsBorrowers) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any Equity Interests of the Borrower’s Equity Interests Borrowers or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, a “Restricted PaymentsPayment”); provided, however, that:
(a) Restricted Payments the Lead Borrower may be made to make the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests)Closing Date Dividend;
(b) the Borrowers may make Restricted Payments may as shall be made in respect of necessary to allow Holdings (or any Parent Entity) (i) to pay operating expenses in the ordinary course of business and other corporate overhead, legal, accounting and other professional fees and expenses (including, without limitation, those owing to third parties plus any customary indemnification claims made by directors, officers, employees, members of management and consultants of Holdings (or any Parent Entity) attributable to the ownership or operations of Holdings, the Borrowers and the Restricted Subsidiaries), (ii) to pay fees and expenses related to any public offering debt or private placement of Equity Interests equity offering, investment or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummatedsuccessful), (iii) to pay franchise and or similar taxes and other fees and expenses required in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerLead Borrower and in order to permit Holdings to make payments (other than cash interest payments) which would otherwise be permitted to be paid by the Borrowers under Section 6.07(b), (iv) payments to finance any Investment permitted by to be made under Section 6.07(b6.04; provided, that (A) such Restricted Payments under this clause (other than Section 6.07(b)(vii))iv) shall be made substantially concurrently with the closing of such Investment and (B) the Parent Entity shall, immediately following the closing thereof cause all property acquired to be contributed to a Borrower or one (1) of the Restricted Subsidiaries or the merger of the person formed or acquired into the Borrowers or one (1) of the Restricted Subsidiaries in order to consummate such Investment; and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) pay customary salary, bonus and other benefits payable to, and indemnities provided on behalf ofto directors, officers, directors and employees employees, members of Holdings management or any Parent Entity, in each case in order to permit consultants of Holdings or any Parent Entity to make the extent such payments; providedsalary, that in the case of subclauses (i) bonuses and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) other benefits are directly attributable and (iii) that are allocable reasonably allocated to the operations of a Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)Subsidiaries;
(c) the Borrowers may make Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem (i) the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultantsofficers, officers employees, members of management or employees consultants of any Parent Entity, Holdings, the Lead Borrower or any of its Subsidiaries (or the Subsidiaries estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) or by any Plan or any shareholders’ agreement then in effect upon such person’s deathPlan, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions Restricted Payments under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15.0 million (plus the sum of the amount of (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity a Borrower during such calendar fiscal year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultantsofficers, officers employees, members of management or employees consultants of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided(or the estate, that such proceeds are not included in heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any determination of the Cumulative Creditforegoing), or any Plan and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar fiscal year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any the next subsequent calendar year; fiscal year and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase (ii) fractional shares of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06Interests;
(d) any person may make non-cash repurchases of Equity Interests in Holdings (or any Parent Entity), any Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or similar Equity Interests if such repurchased Equity Interests represent a portion of the exercise price of such optionsoptions or taxes to be paid in connection therewith;
(e) [reserved];
(f) any Borrower and any Subsidiary of any Borrower may make Restricted Payments to any direct or indirect member of an affiliated group of corporations that files a consolidated U.S. federal tax return with the Borrowers (the “Tax Distributions”), provided that, such Tax Distributions shall not exceed the amount that the Borrowers or such Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the case may be, in respect of such year if the Borrowers or such Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group;
(g) [reserved];
(h) to the extent constituting a Restricted Payment, the Borrowers and the Restricted Subsidiaries may enter into the transactions expressly permitted by Section 6.04, Section 6.05 (other than Section 6.05(e)) or Section 6.07;
(i) the proceeds of which shall be used by Holdings to make (or to make a Restricted Payment to any Parent Equity to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any Parent Equity;
(j) payments made or expected to be made by any Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management or consultants of any Borrower (or any Parent Entity) or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of the foregoing) and any repurchases of Equity Interest in consideration of such payments including demand repurchases in connection with the exercise of stock options;
(k) the Borrowers may make Restricted Payments to Holdings so long as (i) no Default or Event of Default has occurred and is continuing and (ii) the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(fl) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to payredemptions, repurchases, retirements or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange other acquisitions of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding Borrower or any Parent Entity to pay, dividends and make distributions toin exchange for, or repurchase out of the proceeds of the substantially concurrent sale (other than to a Borrower or redeem shares froma Restricted Subsidiary) of, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that Equity Interests of any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings Borrower or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05the proceeds of such sale are contributed to the capital of a Borrower) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, (in each case, in accordance with the requirements of Section 5.10;
other than any Equity Interests issued or sold that are not Qualified Capital Stock) (j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G“Refunding Capital Stock”), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment distributions or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00payments of Receivables Fees; provided, that no Event of Default shall have occurred and be continuing;and
(n) Restricted Payments constituting the Special Lead Borrower may make the Amendment No. 1 Effectiveness Date Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Restricted Payments Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Restricted Subsidiary of the Borrower (orwhich, in the case of non-Wholly Owned Subsidiaries, shall be made (x) to the Borrower or any Restricted Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests or (y) to the extent required by agreements set forth on Schedule 6.07);
(b) Restricted Payments the Borrower may declare and pay dividends or make other distributions as shall be made in respect of necessary to allow Holdings (or any Parent Entity)
(i) to pay operating expenses in the ordinary course of business and other corporate overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) to pay fees and expenses related to any public offering debt or private placement of Equity Interests equity offering, investment or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummatedsuccessful), (iii) to pay franchise and or similar taxes and other fees and expenses reasonably required in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerBorrower and in order to permit Holdings to make payments (other than cash interest payments) which would otherwise be permitted to be paid by the Borrower under Section 6.07(b), (iv) payments to finance any Investment permitted by to be made under Section 6.07(b6.04; provided, that (A) such dividend or distribution under this clause (other than Section 6.07(b)(vii))iv) shall be made substantially concurrently with the closing of such Investment and, (B) the Parent Entity shall, immediately following the closing thereof cause all property acquired to be contributed to the Borrower or one of its Restricted Subsidiaries or the merger of the person formed or acquired into the Borrower or one of its Restricted Subsidiaries in order to consummate such Investment; and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes proceeds of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) shall be used by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions any Parent Entity to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) pay customary salary, bonus and other benefits payable to, and indemnities provided on behalf ofto directors, officers, directors and employees employees, members of Holdings management or any Parent Entity, in each case in order to permit Holdings or any consultants of the Parent Entity to make the extent such payments; providedsalary, that in bonuses and other benefits are directly attributable and reasonably allocated to the case operations of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)Subsidiaries;
(c) Restricted Payments the Borrower may be made to Holdings, declare and pay dividends or make other distributions the proceeds of which are used to purchase or redeem (i) the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultantsofficers, officers employees, members of management or employees consultants of any Parent Entity, Holdings, the Borrower or any of its Subsidiaries (or the Subsidiaries estate, heirs, family members, spouse or former spouse of any of the foregoing) or by any Plan or any shareholders’ agreement then in effect upon such person’s deathPlan, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 7.5 million (plus the sum of the amount of (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar fiscal year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultantsofficers, officers employees, members of management or employees consultants of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided(or the estate, that such proceeds are not included in heirs, family members, spouse or former spouse of any determination of the Cumulative Creditforegoing), or any Plan and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar fiscal year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any the next subsequent calendar year; fiscal year and provided, further, that cancellation (ii) fractional shares of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06stock;
(d) any person the Borrower may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or similar Equity Interests if such repurchased Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default the Borrower may pay dividends or Event of Default has occurred and is continuing and (ii) after giving effect make distributions to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Holdings in an aggregate amount equal to a portion (i) $35.0 million plus (ii) the portion, if any, of the Cumulative Credit Available Basket Amount on the date of such election that the Borrower elects to apply to this Section 6.06(e6.06(e)(ii); provided that, which such election shall (unless such Restricted Payment is made pursuant with respect to clause (aii), at the time of such dividend or distribution and after giving effect thereto and to any borrowing in connection therewith, the First Lien Leverage Ratio on a Pro Forma Basis does not exceed 3.00:1.00 and, with respect to both clause (i) and clause (ii), no Default or Event of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election Default has occurred and the amount thereof elected to be so appliedis continuing;
(f) Restricted Payments the Borrower and any Subsidiary may be made in connection pay dividends or other distributions to any direct or indirect member of an affiliated group of corporations that files a consolidated U.S. federal tax return with the consummation Borrower in accordance with the Tax Sharing Agreement (the “Tax Distributions”), provided that, such Tax Distributions shall not exceed the amount that the Borrower or the Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the ADT Transactionscase may be, in respect of such year if the Borrower or the Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group;
(g) Restricted Payments the Borrower may be made to pay, or to allow Holdings or make dividends and distributions with the net proceeds of any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon Qualified Capital Stock after the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;Closing Date; and
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent constituting a dividend and other distribution permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses6.06, the Borrower may, in and its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such Restricted Subsidiaries may enter into the transactions expressly permitted Restricted Payment by Section 6.05 (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause Section 6.05(e)) or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Section 6.07.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of 122 AFFINION – A&R Credit Agreement capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary subsidiary of the Borrower to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoingforegoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, “Restricted PaymentsDividends”); provided, however, that:
(a) Restricted Payments (i) any Subsidiary may be made to the Borrower declare and pay dividends to, or any Wholly Owned Subsidiary of the Borrower (ormake other distributions to, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); and (ii) to the extent permitted by Section 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings and actual Tax liabilities of Holdings for the consolidated group of which Holdings is parent to the extent that Holdings, and not the Borrower, (A) files a consolidated U.S. federal tax return that includes the Borrower and its Subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or any Parent Entitylocal taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group, and (B) actually pays, or will pay, as the consolidated tax payor, such taxes for the Borrower and its Subsidiaries, it being agreed that if such dividends and distributions are paid to Holdings and Holdings does not make such consolidated tax payments on the date when the Borrower and its subsidiaries are required to pay such taxes, such failure shall be an Event of Default that shall continue until all such taxes are paid, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt equity securities of Holdings or any Parent Entity whether or that is not consummatedconsummated and maintaining the corporate existence of the special purpose Unrestricted Subsidiary formed to own the Netcentives Assets, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, and (iv) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, in order to permit Holdings to make (A) payments permitted by Section 6.07(b) and (B) interest payments in respect of Indebtedness of Holdings permitted by Section 6.09 (other than Section 6.07(b)(vii)), (v) in respect Guarantees of any taxable period for which Indebtedness of the Borrower and/or or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, the proceeds of which are used Holdings in order to enable Holdings to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower 123 AFFINION – A&R Credit Agreement or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of dividends for such purchases or redemptions under this clause (cSection 6.06(c) shall not exceed (i) in any fiscal year (A) $48,000,000 15,000,000 (plus any amounts carried over from prior years, up to $30,000,000 in the aggregate) plus (xB) the amount of net proceeds contributed to the Borrower that were (x) Excluded Equity Proceeds received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included arrangements as set forth in any determination a certificate of a Responsible Officer of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests)Borrower, which, if not used in any fiscal year, may be carried forward to any subsequent fiscal calendar year; , and provided, further, that cancellation (ii) amounts received in respect of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06key man life insurance policy proceeds;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentor would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments any person may be made make additional dividends or other distributions in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is with all other Dividends and other distributions made pursuant to this clause (ae) not to exceed $40,000,000;
(f) any person may make distributions to minority shareholders of any subsidiary that is acquired pursuant to a Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with respect to shares of such subsidiary held by such shareholders;
(g) the Borrower may declare and pay dividends to Holdings (i) on the Closing Date consisting solely of the definition Netcentives Assets or (ii) from amounts received from a concurrent dividend or other distribution or other concurrent payment from the special purpose Unrestricted Subsidiary formed to own the Netcentives Assets for so long as such person remains an Unrestricted Subsidiary; provided, that no Default or Event of “Cumulative Credit”Default shall have occurred and be continuing or would result therefrom;
(h) the Borrower may elect to declare and pay dividends to Holdings in an amount not to exceed the excess, if any, of the Available Free Cash Flow Amount, such election to be set forth specified as provided in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit (x) the aggregate total amount of all Dividends paid to Holdings pursuant to this clause (h) and pursuant to clause (l) of this Section 6.06 from the Restatement Effective Date through the date of such election, and (y) Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided, that (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and any related transactions (including, without limitation, the incurrence of any Indebtedness), and (ii) for any such Dividend, immediately after giving effect to the payment of such Dividend and any related transactions (including, without limitation, the incurrence of any Indebtedness) on a Pro Forma Basis (x) the Consolidated Leverage Ratio, calculated as 124 AFFINION – A&R Credit Agreement of the last day of the most recently completed and Reported fiscal quarter, shall not exceed 5.00 to 1.00, and (y) the Interest Coverage Ratio, calculated as of the last day of the most recently completed and Reported fiscal quarter, shall not be less than 2.00 to 1.00;
(fi) Restricted Payments the Borrower or any Subsidiary may be make any Dividend on the Closing Date used to fund the Transactions and the fees and expenses related thereto or made in connection with the consummation of the ADT TransactionsTransactions as described in the Offering Circular (including payments made pursuant to or as contemplated by the Transaction Documents, as in effect on the Closing Date);
(gj) Restricted Payments the Borrower or any Subsidiary may be made to paymake payments of cash, or dividends, distributions or advances to allow Holdings or any Parent Entity such person to make payments, in payments of cash, in lieu of the issuance of fractional shares, shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;; provided, however, that the aggregate amount of such payments, dividends, distributions or advances shall not exceed $5,000,000; and
(hk) Restricted Payments after a Qualifying IPO, the Borrower may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date make Dividends to pay, or to allow Holding Holdings so that Holdings or any Parent Entity parent entity may make Dividends to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31Borrower, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by parent entity; and
(l) the Borrower may declare and pay dividends to Holdings to enable Holdings to make payments or purchases in respect of any Subsidiary directly would be permitted to be made pursuant to Section 6.04Indebtedness of Holdings; provided, that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets no Default or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
continuing or would result therefrom and any related transactions (kincluding, without limitation, the incurrence of any Indebtedness), and (ii) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long asfor any such Dividend, immediately after giving effect to the payment of such payment or distribution Dividend and any related transactions (including, without limitation, the incurrence of any Indebtedness) on a Pro Forma Basis, the Net Total Consolidated Leverage Ratio is Ratio, calculated as of the last day of the most recently completed and Reported fiscal quarter, shall not greater than 2.90 exceed 5.00 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted Payments may be made to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-non Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 7.04);
(b) the Borrower may make Restricted Payments may be made to Holdings or any Parent Entity in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (Holdings’ or any Parent Entity’s) ’s existence and its Holdings’ (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as Holdings or the applicable Parent Entity, as the case may be, owns no assets other than the Equity Interests in the Borrower, Holdings or another Parent Entity) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local the relevant jurisdiction of Holdings or foreign tax purposes of which a direct or indirect parent of any Parent Entity attributable to the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of Holdings or any Parent Entity incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosing Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at for so long as Holdings or any time that, as the case may be, (x) Holdings Parent Entity owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) the Borrower may make Restricted Payments may be made to Holdings, Holdings or any Parent Entity the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of Holdings, any Parent Entity, Holdings, the Borrower or any of the its Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, year and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the its Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, in each case, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, further that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.067.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Borrower may make Restricted Payments may be made to Holdings or any Parent Entity in an aggregate amount equal to a portion of the Cumulative Credit any regularly scheduled quarterly dividends payable on the date of such election Ultimate Parent’s or any other Parent Entity’s common stock; provided, that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the aggregate amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedpayments made under this paragraph (e) shall not exceed in any fiscal year $15,000,000;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions[Reserved];
(g) the Borrower may make Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) the Borrower may make Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding Holdings or any Parent Entity to pay, dividends and make distributions toEntity, or repurchase or redeem shares from, its its, Holdings’ or any Parent Entity’s equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower after the Closing Date from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) the Borrower may make Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(j) the Borrower may make Restricted Payments to Holdings or any Parent Entity in an amount necessary to fund payments to the Fund and the Fund Affiliates of the type and in amounts otherwise permitted pursuant to Sections 7.07(b)(ix) and (xiv); provided, that such payments are not otherwise made directly by the Borrower or any of its Subsidiaries;
(k) Restricted Payments made within 60 days after the date of declaration thereof, if at the date of declaration such payment would have been permitted under (and was counted against any applicable basket under) this Agreement;
(l) so long as no Event of Default shall have occurred or be continuing or would result therefrom, the Borrower may make other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date Payments in an aggregate amount not equal to exceed the excess, if any, of (A) the greater of (i) $415,000,000 50,000,000 and 0.15 times (ii) 5.0% of Consolidated Total Assets as of the EBITDA calculated on a Pro Forma Basis for end of the Test Period ended fiscal quarter immediately prior to the date of such Restricted Payment for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable, over (it being understood that any B) the aggregate amount of payments or distributions made in respect of Junior Financing pursuant to Section 7.09(b)(i); and
(m) the Borrower may make additional Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Holdings or any Parent Entity; provided, that (A) at the time of such Restricted Payment and after giving effect thereto, no Event of Default shall have occurred and be continuing;
continuing or would result therefrom and (kB) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution Restricted Payment, on a Pro Forma Basis, the Borrower shall have a Total Net Total Senior Secured Leverage Ratio is not of no greater than 2.90 2.75 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Dividends and Distributions. Declare or pay Pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (in each case, solely to a holder of Equity Interests in such person’s capacity as a holder of such Equity Interests) (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Agent’s or a Subsidiary’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower Agent or any Wholly Owned Subsidiary of the Borrower Agent (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Agent or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Agent or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, in each case, to the extent attributable to the ownership or operations of the Borrower Agent and its Subsidiaries, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes Taxes, and other fees and expenses expenses, in connection with the maintenance of its Holdings’ (or any Parent Entity’s) existence and its Holdings’ (or any Parent Entity’s indirect) ownership of the BorrowerBorrower Agent, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii))) or the last paragraph of Section 6.07, (v) in with respect of to any taxable period year for which the Borrower Agent and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower Parent Entity is the common parent, or for which the Borrower Agent is a partnership or disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a Parent Entity that is a C corporation (a “Corporate Parent”) for U.S. federal and/or applicable state state, local or local income foreign tax purposes, distributions to the Tax liability of any direct such Parent Entity or indirect parent of the Borrower Corporate Parent, as applicable, in an aggregate amount not to exceed the amount of any such U.S. federal, state, local or and/or foreign taxes income Taxes that the Borrower Agent and/or its applicable Subsidiaries, as applicable, would have paid for such taxable period had the Borrower Agent and/or its applicable Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup for all applicable taxable years (without duplication, for the avoidance of doubt, of the amount of such Taxes actually directly paid by the Borrower Agent and/or any of its Subsidiaries to the relevant taxing authority, if any); provided, that, the permitted payment pursuant to this clause (v) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower Agent or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes; and (vi) customary salary, bonus bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdingspurchase, the proceeds of which are used to purchase retire or redeem the Equity Interests of the Borrower Agent, Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then any future, present or former directors, consultants, officers or employees (or their respective Immediate Family Members) of any Parent Entity, Holdings, the Borrower Agent or any of the Subsidiaries Subsidiaries, including any repurchase, retirement or by redemption pursuant to any Plan or any shareholders’ agreement or other agreement or arrangement then in effect or upon such person’s death, disability, retirement or termination of employment or under the terms to cover such person’s payment of any such Plan or any other agreement under which such shares of stock or related rights were issuedwithholding taxes in connection therewith; provided, that the aggregate amount of such purchases purchases, retirements or redemptions under this clause (c) shall not exceed in any fiscal calendar year $48,000,000 30,000,000 (plus an amount equal to (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity Agent during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower Agent or any Subsidiary in connection with permitted employee compensation and incentive arrangementsthat occur after the Closing Date; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received by the Borrower Agent or any Subsidiary during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower Agent or the Subsidiaries any Subsidiary in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any calendar year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower Agent or any Subsidiary from any present or former members of management management, directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower Agent or its Subsidiaries any Subsidiary in connection with a repurchase of Equity Interests of the Borrower Agent, Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower Agent elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the BorrowerBorrower Agent, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default shall have occurred and be continuing;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including payments and distributions to dissenting stockholders or stockholders exercising appraisal rights pursuant to applicable law or as a result of the settlement of any stockholder claims or action (whether actual, contingent or potential);
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date of up to pay, or to allow Holding or $150,000,000 in any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)calendar year;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Permitted Business Acquisition, New Project or other acquisition or Investment that if made by the Borrower Agent or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Permitted Business Acquisition, New Project or other acquisition or Investment and (B) Holdings or such parent Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Agent or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower Agent or a Subsidiary in order to consummate such Permitted Business Acquisition Acquisition, New Project or other acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 133,000,000 and 0.15 0.25 times the Adjusted EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Payment; provided, provided that no Event of Default shall have occurred and be continuing;
(k) [reserved];
payments of dividends on (land pursuant to the terms of) Restricted Payments may be made Disqualified Stock of the Borrower Agent issued in compliance with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00Section 6.01; provided, provided that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(ol) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date (i) in an aggregate amount not to exceed $600,000,000the aggregate amount of Excluded Contributions or (ii) without duplication of clause (i), in an amount not to exceed the net proceeds from an Asset Sale or other Disposition in respect of property or assets acquired after the Closing Date, to the extent the acquisition of such property or assets was financed with Excluded Contributions;
(m) any Restricted Payment may be made, so long as no Event of Default has occurred and is continuing or would result therefrom and, after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 2.50 to 1.00; and
(n) any consideration, payment, dividend, distribution or other transfer in respect of Securitization Fees or in connection with a Permitted Securitization Financing or a receivables financing may be made. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment or redemption, purchase, defeasance or other payment would have complied with the provisions of this Agreement. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the fair market value thereof, which shall be determined in good faith by the Borrower Agent and may be determined either, at the option of the Borrower Agent, at the time of such Restricted Payment or as of the date of the definitive agreement with respect to such Restricted Payment. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower Agent may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests Holdings Common Stock payable solely by the issuance of additional Equity Interests (other than Disqualified shares of Holdings Common Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Subsidiary may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the U.S. Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the U.S. Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the U.S. Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments the U.S. Borrower may be made declare and pay dividends or make other distributions to Intermediate Holdings (which may, in turn, declare and pay dividends or make other distributions to Holdings, in an amount equal to the dividends and distributions received by Intermediate Holdings) in respect of (i) overhead, tax liabilities of Holdings and Intermediate Holdings, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the U.S. Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its SubsidiariesIntermediate Holdings, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (ipayments permitted by Sections 6.07(b) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(c) Restricted Payments Holdings may be made purchase or redeem (and the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used so to purchase or redeem the redeem) Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the U.S. Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 7,500,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent EntityIntermediate Holdings, the U.S. Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash this Section 6.06 shall not prohibit noncash repurchases of Equity Interests that are deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) Holdings may purchase or redeem, or declare and pay dividends or make other distributions in respect of (and the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings so long as to purchase or redeem, or pay such dividends or make such other distributions in respect of) Equity Interests of Holdings (i) no Default including the purchase or Event redemption of Default has occurred and is continuing and (ii) after giving effect related stock appreciation rights or similar securities with respect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Equity Interests) in an aggregate amount equal not to a portion of exceed (A) (x) $25,000,000 minus (y) the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the aggregate amount of Cumulative Credit immediately prior to such election purchases, redemptions, dividends and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be distributions made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Restatement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that clause (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater Cumulative Net Income Amount at the time of $415,000,000 such purchase, redemption, dividend or distribution, provided that, in the case of both clauses (A) and 0.15 times (B) above, (1) the EBITDA calculated on a Pro Forma Basis for Senior Secured Leverage Ratio as of the Test Period last day of the most recently ended immediately fiscal quarter prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date purchase, redemption, dividend or distribution for which financial statements have been delivered pursuant to this Section 6.06(j5.04 is less than 1.5 to 1.0 and (2) shall not use capacity hereunder); provided, that no Default or Event of Default shall have occurred and be continuingcontinuing or would result therefrom;
(kf) [reserved];
Holdings may purchase or redeem (land the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings so to purchase or redeem) Restricted Payments may be made Equity Interests of Holdings (including the purchase or redemption of related stock appreciation rights or similar securities with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect respect to such payment Equity Interests) in an aggregate amount not to exceed (A) (x) $25,000,000 minus (y) the aggregate amount of purchases and redemptions made on or distribution on a Pro Forma Basisafter the Restatement Effective Date pursuant to this clause (A) and (B) in an aggregate amount not to exceed the Cumulative Net Income Amount at the time of such purchase or redemption, provided that, in the Net Total case of both clauses (A) and (B) above, (1) the Senior Secured Leverage Ratio as of the last day of the most recently ended fiscal quarter prior to the date of such purchase or redemption for which financial statements have been delivered pursuant to Section 5.04 is not greater less than 2.90 1.5 to 1.00; provided, that 1.0 and (2) no Default or Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividendcontinuing or would result therefrom; and
(og) Restricted Payments Holdings may be made on purchase or after redeem (and the Ninth Incremental Assumption U.S. Borrower may declare and Amendment Agreement Effective Date pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings to purchase or redeem) Equity Interests of Holdings in an aggregate amount not to exceed $600,000,000connection with a Permitted Call Spread Transaction. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenantcontrary herein, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (Bi) in the event that a Restricted Payment (or of any portion thereof) meets the criteria of one or more merger of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the U.S. Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled into Intermediate Holdings pursuant to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”6.05(b)(i), any dividend or distribution permitted to be made under this Section 6.08 to the determination of the amount of such Restricted Payment (or any portion thereof) that U.S. Borrower may be made to Intermediate Holdings, (ii) in the event of any merger of Intermediate Holdings into Holdings pursuant to the Restricted Payments Incurrence Clause shall Section 6.05(b)(ii), any dividend or distribution permitted to be made without giving pro forma effect under this Section 6.08 to Intermediate Holdings (including pursuant to clause (i) of this paragraph) may be made to Holdings and (iii) in the event of any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any merger of the above clauses other than surviving entity of any merger of the Restricted Payments Incurrence Clause or U.S. Borrower and Intermediate Holdings with Holdings pursuant to Section 6.05(b)(ii), any dividend permitted to be made under this Section 6.08 to the incurrence of Indebtedness U.S. Borrower may be made to finance any such Restricted Payment (or any portion thereof)Holdings.
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise)) to, whether in cash, property, securities or a combination thereofthereof (or, for the avoidance of doubt, with the Net Cash Proceeds of any IPO), with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests of Holdings, the Borrower or any Subsidiary or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such sharesBorrower) (all any of the foregoing, a “Restricted PaymentsPayment”); provided, however, that:
(a) any Subsidiary may make Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other direct owner of Equity Interests of such Subsidiary (other than, in any case, Holdings); provided that, in the case of a Subsidiary that is a non-Wholly Owned Subsidiary, (i) such dividends, repurchases or other distributions are made to all owners of such Subsidiary’s Equity Interests on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiaryand its Subsidiaries) based on their relative ownership interests)interests and (ii) any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.03;
(b) the Borrower or any Subsidiary may make Restricted Payments may be made in respect of (x) (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s indirect) ownership of the BorrowerBorrower or any Subsidiary, (iv) payments permitted by Section 6.07(b6.06(b) (other than Section 6.07(b)(vii6.06(b)(vii)), ) and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100100.0% at for so long as such Parent Entity owns no assets other than the Equity Interests in the Borrower or a Parent Entity) and (y) the Borrower may make Restricted Payments to any time thatParent Entity that files consolidated U.S. federal tax return for any year that includes the Borrower and any Subsidiaries as part of the consolidated tax group, in each case in an amount not to exceed the amount that the Borrower and the Subsidiaries would have been required to pay in respect of federal, state or local taxes (as the case may be) in respect of such year if the Borrower and the Subsidiaries paid such taxes directly as a standalone group or, if less, the portion of the tax liabilities of such Parent Entity allocable to the Borrower and the Subsidiaries (x) Holdings which shall be 100.0% for as long as such Parent Entity owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) Holdings, the Borrower or any Subsidiary may make Restricted Payments may be made to Holdings, any Parent Entity the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by future, then present or former directors, consultantsofficers, officers employees, members of management and consultants (and/or their respective estates, heirs, family members, spouses, domestic partners, former spouses or employees former domestic partners) of any Parent Entity, Holdingsthe Borrower, the Borrower or any of the Subsidiaries Subsidiary or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 2.0 million, which, if not used in any year, may be carried forward to the immediately succeeding fiscal year (plus (I) (x) the amount of net proceeds contributed in cash to the common stock of the Borrower after the Initial Closing Date that were proceeds of any key-person life insurance policies received during such calendar year and (xy) the amount of net proceeds contributed in cash to the common stock of the Borrower after the Initial Closing Date that were received by Holdings or any Parent Entity (to the extent contributed to the Borrower) during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangementsarrangement, in each case, Not Otherwise Applied; provided, that the aggregate amount of such proceeds are purchases or redemptions under this paragraph (I) shall not included exceed in any determination of fiscal year $2.0 million and shall not exceed $10.0 million in the Cumulative Creditaggregate, plus (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (zII) the amount of any bona fide cash bonuses otherwise payable to members of managementthe Board of Directors, directors consultants, officers, employees, managers or consultants independent contractors of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions any Subsidiary that are foregone in return for the receipt of Equity Interests, the fair market value of which is equal to or less than the amount of such cash bonuses, plus (III) payments made with respect to withholding taxes related to such repurchases), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that (i) in each case after giving effect thereto, no payment or bankruptcy Event of Default is outstanding or would result therefrom, and the Borrower is in compliance with the Borrower Leverage Covenant on a Pro Forma basis and (ii) cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.066.05;
(d) any person may make non-cash repurchases of Equity Interests of the Borrower and the Subsidiaries deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, any Subsidiary may make Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hf) any Subsidiary may make Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.046.03; provided, provided that (Aa) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bb) such parent Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed as equity to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation merger (to the extent permitted in Section 6.056.04) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(kg) [reserved];
(lh) Restricted Payments may be made with Excluded Contributions;distributions of the cash proceeds of an Additional Equity Investment effected pursuant to Section 7.01(s)(a)(ii); and
(mi) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary100,000; provided, the foregoing provisions that no Default or Event of Section 6.06 will not prohibit the payment of any Restricted Payment Default has occurred and is continuing or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)result therefrom.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Meridian Bioscience Inc)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that, without duplication:
(a) Restricted Payments any subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary subsidiary that is a direct or indirect parent of such Subsidiary subsidiary and to each other owner of Equity Interests of such Subsidiary subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiarysubsidiary) based on their relative ownership interests);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to the Parents in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iiiii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) attributable to their ownership of the Borrower, ;
(ivc) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary may purchase or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the redeem Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 3.5 million (plus (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options;
(e) the Borrower may declare and pay dividends or make other distributions or reimbursements to DIRECTV or any of its Affiliates in an aggregate amount equal to the cash and cash equivalents that collateralize the Existing Letters of Credit as the Existing Letters of Credit are terminated or replaced as contemplated by the Transaction Agreement;
(f) the Borrower may pay dividends and make distributions to, or to repurchase or redeem shares from, its equity holders in an aggregate amount equal to the sum of (i) $2.0 million, plus (ii) the portion, if any, of the Available Investment Basket Amount on the date of such election that the Borrower elects to apply pursuant to this Section 6.06(f); provided that the amount in this clause (ii) shall only be available so long as (ix) no Default or Event of Default has occurred and is continuing and (iiy) after giving effect either (1) SPACEWAY has entered commercial operation at such time or (2) the Borrower has delivered written notice to such Restricted Paymentthe Administrative Agent that the construction of SPACEWAY and related assets has been irrevocably abandoned;
(g) for so long as the Borrower is a Flow Through Entity, payment of dividends or other distributions to any member of the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Borrower in an aggregate amount, with respect to any period after the Closing Date, (i) not to exceed the tax amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects is required to apply distribute to this Section 6.06(e), which such election shall (unless such Restricted Payment is made its members pursuant to clause (a) Section 6.3.4 of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer Limited Liability Agreement of the BorrowerBorrower as in effect on the Closing Date with respect to the Borrower for such period or (ii) in the event that Section 6.3.4 of the Limited Liability Agreement of the Borrower is no longer operable, which notice shall set forth calculations in reasonable detail equal to (A) the product of the amount of Cumulative Credit immediately prior aggregate net taxable income allocated by the Borrower to such election member of the Borrower for such period multiplied by the Presumed Tax Rate for such period less (B) the amount of dividends or other distributions, if any, received by such member from the Borrower during such period; and (b) if the Borrower is not a Flow Through Entity, payment of dividends or other distributions to any direct or indirect parent of the Borrower that files a consolidated U.S. federal tax return that includes the Borrower and its subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group; and
(h) any payment used to fund the Transactions and the amount thereof elected to be so applied;
(f) Restricted Payments may be fees and expenses related thereto or made in connection with the consummation of the ADT Transactions;
Transactions (g) Restricted Payments may be including payments made pursuant to payor as contemplated by the Transaction Documents, whether payable on the Closing Date or thereafter), or to allow Holdings or owed by any Parent Entity to make payments, in cash, in lieu parent of the issuance of fractional sharesBorrower, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted Subsidiaries of the Borrower to be made Affiliates pursuant to Section 6.04; providedthe Transaction Documents, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (in each case to the extent permitted in by Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)6.07.
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of any Borrower may make Restricted Payments may be made to the such Borrower or to any Wholly Owned Subsidiary of the such Borrower (or, in the case of non-non- Wholly Owned Subsidiaries, to the such Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the such Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not such Borrower or a Subsidiary is permitted under Section 7.04);
(b) each Borrower may make Restricted Payments may be made to any Holdco in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entitysuch Holdco, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity such Holdco whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) such Holdco’s existence and its (or any Parent Entitysuch Holdco’s indirect) ownership of the such Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as such Holdco owns no assets other than the Equity Interests in such Borrower) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local the relevant jurisdiction of such Holdco attributable to such Borrower or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of such Holdco incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosing Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entitysuch Holdco, in each case in order to permit Holdings or any Parent Entity such Holdco to make such payments; providedprovided that, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the such Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as such Holdco, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to in such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(ed) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, each Borrower may make Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings Holdco or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the such Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person Person formed or acquired into the such Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(je) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be Payments made on or within 60 days after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of declaration thereof, if at the date of declaration such Restricted Payment payment would have been permitted under (it being understood that and was counted against any applicable basket under) this Agreement; and
(f) each Borrower may make any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(jPayment; provided that (x) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
continuing or would result therefrom and (ky) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default Payment Conditions shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of any Borrower may make Restricted Payments may be made to the such Borrower or to any Wholly Owned Subsidiary of the such Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the such Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the such Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not such Borrower or a Subsidiary is permitted under Section 7.04);
(b) each Borrower may make Restricted Payments may be made to any Holdco in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entitysuch Holdco, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity such Holdco whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) such Holdco’s existence and its (or any Parent Entitysuch Holdco’s indirect) ownership of the such Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as such Holdco owns no assets other than the Equity Interests in such Borrower) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local the relevant jurisdiction of such Holdco attributable to such Borrower or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of such Holdco incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosingAmendment No. 2 Effective Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entitysuch Holdco, in each case in order to permit Holdings or any Parent Entity such Holdco to make such payments; providedprovided that, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the such Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as such Holdco, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to in such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(ed) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, each Borrower may make Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings Holdco or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the such Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person Person formed or acquired into the such Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(je) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be Payments made on or within 60 days after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of declaration thereof, if at the date of declaration such Restricted Payment payment would have been permitted under (it being understood that and was counted against any applicable basket under) this Agreement; and
(f) each Borrower may make any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(jPayment; provided that (x) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
continuing or would result therefrom and (ky) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default Payment Conditions shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Constellium Se)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership ownership, or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year Fiscal Year $48,000,000 10,000,000 (which shall increase to $15,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Qualified Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar yearyear subject to a maximum of $20,000,000 in any Fiscal Year (which shall increase to $30,000,000 subsequent to a Qualified IPO); and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrowerthereof, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, at the time of and after giving effect thereto, the Net First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 2.25 to 1.0;
(f) Restricted Payments may be made on the Closing Date in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any a Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment dividend or distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;5.11; or
(j) other Restricted Payments, combined together with payments and distributions under made pursuant to Section 6.09(b)(i)(G6.09(b)(i)(F), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)30,000,000.
Appears in 1 contract
Samples: First Lien Credit Agreement (DS Services of America, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) existence and any Parent Entity’s ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period (or portion thereof) for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state state, local or local income foreign tax purposes, distributions Restricted Payments to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or and/or foreign income taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period (or portion thereof) had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup (without duplication, for the avoidance of doubt, of any amount of such taxes actually directly paid by the Borrower and/or any of its Subsidiaries to the relevant taxing authority, if any) and (vi) customary salary, bonus bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x) Holdings any Parent Entity owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Borrower);
(c) Restricted Payments may be made to Holdingsmade, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity the Borrower (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied[reserved];
(f) Restricted Payments may be made in connection with as required under the consummation Tax Matters Agreement; provided that such payments are not duplicative of the ADT Transactionspayments under clause (b) of this Section 6.06;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)[reserved];
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 50,000,000 and 0.15 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Period; provided, provided that no Event of Default shall have occurred and be continuingcontinuing or would result therefrom;
(k) [reserved];
(l) Restricted Payments may be made with in an aggregate amount not to exceed the aggregate amount of Excluded Contributions;
(m) other any Restricted Payments Payment may be made so long asas no Default or Event of Default has occurred and is continuing or would result therefrom and, immediately after giving effect to such payment or distribution on a Pro Forma BasisRestricted Payment, the Net Total Leverage Ratio is on a Pro Forma Basis would not greater than 2.90 exceed 1.75 to 1.00; provided, that no Event of Default shall have occurred and be continuing;and
(n) any consideration, payment, dividend, distribution or other transfer in connection with a Permitted Securitization Financing; provided, further, that, notwithstanding anything to the contrary in this Agreement, the aggregate amount of new Restricted Payments constituting made pursuant to this Section 6.06(c), (j), (m) and (n) during the Special Dividend; and
period commencing on the Amendment No. 3 Effective Date and ending on the last day of the Covenant Adjustment Period, together with the aggregate amount of new Restricted Junior Financing Payments made pursuant to Sections 6.09(b)(i)(F), (oG) (solely to the extent such Net Share Settlement is in the form of cash) and (H) below during the period commencing on the Amendment No. 3 Effective Date and ending on the last day of the Covenant Adjustment Period, shall not exceed $5,000,000 (it is understood that Restricted Payments may made pursuant to this second proviso shall be made on or after permitted only to the Ninth Incremental Assumption extent permitted under the other provisions of this Section 6.06 and Amendment Agreement Effective Date in an aggregate amount this second proviso is not to exceed $600,000,000intended to, and shall not provide, Restricted Payments capacity not otherwise permitted by this Section 6.06). Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment or redemption, purchased, defeasance or other payment would have complied with the provisions of this Agreement. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the fair market value thereof, which shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Restricted Payment or as of the date of the definitive agreement with respect to such Restricted Payment. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses Section 6.06(a) through (n) but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (Cerence Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any shares of its Equity Interests Capital Stock (other than dividends and distributions on Equity Interests the common stock of UCAR payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) shares of the person paying such dividends common stock of UCAR or distributionsrights, warrants or options to acquire common stock of UCAR) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s Equity Interests any class of its Capital Stock or set aside any amount for any such purpose (other than through collectively, the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”"RESTRICTED EQUITY PAYMENTS"); providedPROVIDED, howeverHOWEVER, that:
(a) Restricted Payments any Subsidiary may be made declare and pay dividends to, repurchase its Capital Stock from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests Capital Stock of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to UCAR in respect of (i) overhead, tax liabilities, legal, accounting and other professional fees and expenses of Holdings or and any Parent Entity, (ii) fees and expenses related associated with registration statements filed with the Securities and Exchange Commission and subsequent ongoing public reporting requirements, in each case to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses the extent actually incurred by UCAR in connection with the maintenance business of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests Capital Stock of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)the Unrestricted Subsidiaries;
(c) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, UCAR, the Borrower and the Subsidiaries may make Restricted Equity Payments so long as, after giving effect thereto, the aggregate amount of Restricted Junior Payments made after the Effective Date shall not exceed the Restricted Junior Payment Amount applicable to the fiscal year in which any such Restricted Equity Payment is made;
(d) UCAR or the Borrower may be made purchase or redeem, or the Borrower may declare and pay dividends or make other distributions to Holdings, UCAR the proceeds of which are to be used to purchase or redeem the Equity Interests redeem, shares of Holdings Capital Stock (or any Parent Entity rights, options or warrants in respect of such shares) of UCAR (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, HoldingsUCAR, the Borrower or any of the Subsidiaries Subsidiary or by any Plan or any shareholders’ agreement then in effect upon such person’s 's death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; providedPROVIDED that the aggregate amount of such purchases or redemptions (or dividends or distributions to UCAR) under this paragraph (d) shall not exceed $5,000,000 per calendar year which, if not used in any year may be carried forward to any subsequent calendar year; PROVIDED, HOWEVER, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference dividends or distributions to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereofUCAR) that may be made pursuant to this paragraph (d) shall not exceed $25,000,000; and
(e) the Borrower may declare and pay dividends or make other distributions to UCAR in order to fund Litigation Payments; PROVIDED that the amount of dividends and distributions permitted pursuant to this clause (e), plus the amount of Restricted Debt Payments Incurrence Clause permitted pursuant to the last sentence of Section 6.09(b), shall be not exceed $400,000,000 (calculated in the manner described in Section 3.24). It being understood that $20,000,000 of such payments and distributions to UCAR in respect of Litigation Liabilities have been made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any as of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Effective Date.
Appears in 1 contract
Dividends and Distributions. Declare If, on or pay any dividend after the date hereof, Travelocity should (i) split, combine or make otherwise change the Shares or its capitalization, (ii) acquire currently outstanding Shares or otherwise cause a reduction in the number of outstanding Shares or (iii) issue or sell additional Shares, shares of any other distribution (by reduction class of capital or otherwise)stock, whether in cash, property, other voting securities or a combination thereofany securities convertible into, with respect or rights, warrants or options, to acquire any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made other than Shares issued pursuant to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion outstanding as of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentdate hereof, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00then, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior subject to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption11, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more "The Offer--Certain Conditions of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower mayOffer," Purchaser, in its sole discretion, dividemay make such adjustments as it deems appropriate in the Offer price and other terms of the Offer, classify including, without limitation, the number or reclassifytype of securities offered to be purchased.
(i) the Offer price and other terms of the Offer may, in the sole discretion of Purchaser, be reduced by the amount of any such cash dividend or cash distribution and (ii) the whole of any such noncash dividend, distribution or issuance to be received by the tendering stockholders will (a) be received and held by the tendering stockholders for the account of Purchaser and will be required to be promptly remitted and transferred by each tendering stockholder to the Depositary for the account of Purchaser, accompanied by appropriate documentation of transfer, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereofb) in any manner that complies with this covenant and at the time direction of divisionPurchaser, classification or reclassification be exercised for the benefit of Purchaser, in which case the proceeds of such exercise will promptly be remitted to Purchaser. Pending such remittance and subject to applicable law, Purchaser will be entitled to only include all rights and privileges as owner of any such noncash dividend, distribution, issuance or proceeds and may withhold the entire Offer price or deduct from the Offer price the amount and type of such Restricted Payment (or any portion value thereof) , as determined by Purchaser in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)its sole discretion.
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent shareholder of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in Second Amended and Restated Term Loan Credit Agreement connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable statethe relevant jurisdiction of Holdings (or any Parent Entity) attributable to Holdings, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, Subsidiaries and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as Holdings or such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 20 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity of Holdings to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect the Borrower may pay dividends to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Holdings in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Borrower and its Subsidiaries shall be in Pro Forma Compliance;
(f) Restricted Payments the Borrower may be made in connection with pay dividends on the consummation of Closing Date to consummate the ADT Transactions;; Second Amended and Restated Term Loan Credit Agreement
(g) Restricted Payments the Borrower may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments after a Qualified IPO, the Borrower may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) Restricted Payments the Borrower may be made make distributions to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation merger (to the extent permitted in Section 6.05) of the person Person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;; and
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), the Borrower may be made on or pay dividends after the Ninth Incremental Assumption Closing Date to permit Holdings to make payments required under the Acquisition Agreement (including Sections 2.9 and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion 5.4 thereof).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Berry Plastics Holding Corp)
Dividends and Distributions. Declare The Parent will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any dividend Restricted Payment, return any capital to its stockholders or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Property to its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeemInterest holders, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, thatexcept:
(a) Restricted Payments the Parent may be made declare and pay dividends with respect to the Borrower its Equity Interests payable solely in additional shares of its Equity Interests or any Wholly Owned Subsidiary of the Borrower (or, in the case of other non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each cash form (other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership intereststhan Disqualified Capital Stock);
(b) Restricted Payments Subsidiaries may be made in respect of (i) overheaddeclare and pay unlimited dividends, legal, accounting fees and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related amounts ratably with respect to any public offering or private placement of their Equity Interests or debt securities of Holdings or and may distribute any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of Property to its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of Equity Interest holders that are either the Parent, the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)Guarantor;
(c) the Parent may make Restricted Payments may be made pursuant to Holdingsand in accordance with stock option plans, the proceeds equity plans or other benefit or compensation plans providing for payments on account of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held services provided by then present current or former directors, consultantsofficers, officers employees or employees consultants of any the Parent Entity, Holdings, the Borrower or its Restricted Subsidiaries or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06Affiliates;
(d) any person to the extent not permitted by clauses (a) to (c) above, the Parent may make non-cash repurchases (i) Restricted Payments up to an aggregate amount of US$20,000,000 and (ii) additional Restricted Payments up to an aggregate amount of US$55,000,000 (not including Restricted Payments made under the foregoing clause (i)) or dividends, distributions or transfers of Equity Interests deemed to occur upon exercise or other assets or Debt of stock options if an Unrestricted Subsidiary if, in the case of Restricted Payments or such Equity Interests represent a portion dividends, distributions or transfers in respect of the exercise price of such options;
an Unrestricted Subsidiary, in each case, made under this clause (e) so long as ii), (iA) no Default or Event of Default has occurred and is continuing at the time such Restricted Payment or such dividend, transfer or distribution is made or would result from the making of such Restricted Payment or such dividend, transfer or distribution, (B) the Minimum Liquidity after giving effect to such Restricted Payment or such dividend, transfer or distribution is not less than the greater of (x) 25% of the Global Borrowing Base then in effect and (iiy) US$250,000,000, and (C) after giving effect to such Restricted PaymentPayment or such dividend, transfer or distribution, the Net Total Leverage Ratio on a Pro Forma Basis Borrower is not greater than 3.65 to 1.00, Restricted Payments in pro forma compliance with Section 9.01;
(e) the Parent may be made purchase or otherwise acquire Equity Interests in an aggregate amount equal to a portion any Subsidiary using additional shares of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;its Equity Interests; and
(f) Restricted Payments the Parent may be made in connection with redeem the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date share purchase rights issued pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any that certain Rights Agreement, dated as of March 11, 2003, between the Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; providedand Mellon Investor Services LLC, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each caseas Rights Agent, in accordance with the requirements terms of Section 5.10;
(j) other Restricted Paymentssuch Rights Agreement. For the avoidance of doubt, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date extent any Restricted Payment could be attributable to more than one subsection of this Section 9.04, the Parent or any Restricted Subsidiary may categorize all or any portion of such Restricted Payment (it being understood that to any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to one or more subsections of this Section 6.06(j) shall not use capacity hereunder); 9.04 as it elects and unless as otherwise expressly provided, that in no Event of Default event shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment same portion of any Restricted Payment be deemed to utilize or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions be attributable to more than one subsection of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)9.04.
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary subsidiary of the Borrower to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoingforegoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, “Restricted PaymentsDividends”); provided, however, that:
(a) Restricted Payments (i) any Subsidiary may be made to the Borrower declare and pay dividends to, or any Wholly Owned Subsidiary of the Borrower (ormake other distributions to, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); and (ii) to the extent permitted by Section 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings, including, in an aggregate amount not to exceed $2,500,000, for director fees and for costs and expenses associated with registration and listing of Holdings’ Equity Interests, and (ii) actual U.S. federal, state and local income Tax liabilities of Holdings or any Parent Entityfor the consolidated group of which Holdings is parent to the extent that Holdings, and not the Borrower, (iiA) files a consolidated U.S. federal income tax return that includes the Borrower and its Subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or local income taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group; provided, that with respect to any such taxes attributable to Unrestricted Subsidiaries, such dividends or distributions shall be permitted only to the extent of cash actually received from such Unrestricted Subsidiaries and (B) actually pays, or will pay, as the consolidated tax payor, such taxes for the Borrower and its Subsidiaries, it being agreed that if such dividends and distributions are paid to Holdings and Holdings does not make such consolidated tax payments on the date when the Borrower and its subsidiaries are required to pay such taxes, such failure shall be an Event of Default that shall continue until all such taxes are paid, (iii) fees and expenses related to any public offering or private placement of Equity Interests or debt equity securities of Holdings or any Parent Entity whether or that is not consummated, and (iiiiv) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, the proceeds of which are used Holdings in order to enable Holdings to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of dividends for such purchases or redemptions under this clause (cSection 6.06(c) shall not exceed (i) in any fiscal year (A) $48,000,000 2,500,000 (plus up to $1,250,000 of any such unused amounts from the immediately preceding year which may be carried over), plus (xii) the amount of net cash proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary from the issuance of Equity Interests of Holdings (other than Disqualified Stock) in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included arrangements as set forth in any determination a certificate of a Responsible Officer of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests)Borrower, which, if not used in any fiscal year, may be carried forward to any subsequent fiscal calendar year; and provided, further, that cancellation plus (iii) amounts received in respect of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06key man life insurance policy proceeds;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentor would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments any person may be made make additional dividends or other distributions in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is with all other Dividends and other distributions made pursuant to this clause (ae) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior not to such election and the amount thereof elected to be so appliedexceed $5,000,000;[reserved];
(f) Restricted Payments any person may be made in connection make distributions to minority shareholders of any subsidiary that is acquired pursuant to a Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with the consummation respect to shares of the ADT Transactionssuch subsidiary held by such shareholders;
(g) Restricted Payments [reserved];
(h) [reserved];
(i) [reserved];
(j) the Borrower or any Subsidiary may be made to paymake payments of cash, or dividends, distributions or advances to allow Holdings or any Parent Entity such person to make payments, in payments of cash, in lieu of the issuance of fractional shares, shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, however, that (A) such Restricted Payment shall be made substantially concurrently with the closing aggregate amount of such Investment and (B) such parent shallpayments, immediately following the closing thereofdividends, cause (1) all property acquired (whether assets distributions or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) advances shall not use capacity hereunder)exceed $5,000,000; provided, that no Event of Default shall have occurred and be continuing;and
(k) [reserved];; and
(l) Restricted Payments the Borrower may be made with Excluded Contributions;
(mx) other Restricted Payments so long as, immediately after giving effect declare and pay dividends to such payment Holdings to enable Holdings to make payments or distribution on a Pro Forma Basis, purchases in respect of the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event Existing Holdings Notes using the proceeds of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions issuances of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant2017 Exchange Notes, (Ay) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described issue 2017 Exchange Notes in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made exchange for Existing Holdings Notes pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect 2017 Exchange and (z) declare and pay dividends to any substantially concurrent Restricted Payment Holdings to enable Holdings to pay accrued and unpaid interest with respect to Existing Holdings Notes in connection with the transactions described in clauses (or any portion thereofx) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment and (or any portion thereofy).
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeemingpurpose; PROVIDED, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, howeverHOWEVER, that:
(a) Restricted Payments any subsidiary of the Term Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Term Borrower or to any Wholly Owned Subsidiary of the Term Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Term Borrower or any Subsidiary subsidiary that is a direct or indirect parent of such Subsidiary subsidiary and to each other owner of Equity Interests of such Subsidiary subsidiary on a pro rata PRO RATA basis (or more favorable basis from the perspective of the Term Borrower or such Subsidiarysubsidiary) based on their relative ownership interests);
(b) Restricted Payments the Term Borrower may be made declare and pay dividends or make other distributions to Holdings (or if the direct parent of the Term Borrower is New US Holdco, to New US Holdco, which in turn will declare and pay as dividends or distributions such amounts to Holdings) (A) in respect of (i) overhead, tax liabilities of Holdings (including prior to the consummation of the Parent Merger, any Tax Distribution necessary to allow Holdings to make a Tax Distribution in accordance with Section 6.06(f)), legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) fees and expenses related to any public offering equity -121- offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Term Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (viB) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (ipayments permitted by Sections 6.07(b) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(c) Restricted Payments Holdings may be made purchase or redeem (and the Term Borrower may declare and pay dividends or make other distributions to Holdings, the proceeds of which are used so to purchase or redeem the redeem) Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Holdings or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s 's death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, PROVIDED that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 (7.5 million plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Holdings or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year and (y) of any key-man life insurance policies recorded during such calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such optionsoptions shall be permitted;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments payment may be made in an aggregate amount equal to a portion the minority shareholders of the Cumulative Credit on Company of (x) the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall "guaranteed dividends" (unless such Restricted Payment is made Ausgleichzahlung) payable pursuant to clause the Domination Agreement and (ay) of the definition of “Cumulative Credit”) be set forth "minimum dividend" payable in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;accordance with German Law for 2003; and
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made with respect to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment tax year (or portion thereof) need not be permitted solely that Holdings qualifies as a Flow Through Entity, the distribution by reference Holdings to one category the holders of permitted Restricted Payments the Equity Interests of Holdings of an amount equal to the product of (A) the amount of aggregate net taxable income allocated by Holdings to the direct or any portion thereof) described in indirect holders of the above clauses but may be permitted in part under any combination thereof Equity Interests of Holdings for such period and (B) in the event that a Restricted Payment Presumed Tax Rate for such period and (ii) with respect to any tax year (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesthat Holdings does not qualify as a Flow Through Entity, the Borrower maypayment of dividends or other distributions to any direct or indirect holders of Equity Interests of Holdings in amounts required for such holder to pay federal, state or local income taxes (as the case may be) imposed directly on such holder to the extent such income taxes are attributable to the income of Holdings and its Subsidiaries; PROVIDED, HOWEVER, that in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of each case the amount of such Restricted Payment payments in respect of any tax year does not exceed the amount that Holdings and its Subsidiaries would have been required to pay in respect of federal, state or local taxes (as the case may be) in respect of such year if Holdings and its Subsidiaries paid such taxes directly as a stand-alone taxpayer (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofstand-alone group).
Appears in 1 contract
Samples: Credit Agreement (Celanese CORP)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of Holdings may make Restricted Payments may be made to the Borrower Holdings or to any Wholly Owned Subsidiary of the Borrower Holdings (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Holdings or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Holdings or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in with respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower Holdings, Products and/or any of its one or more Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar income tax group for U.S. federal and/or applicable state, state or local or foreign income tax purposes of which a direct or indirect parent of the Borrower Holdings is the common parent, or for which the Borrower is parent (a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes“Tax Group”), distributions (“Tax Distributions”) shall be permitted to any direct or indirect parent of Holdings to pay the Borrower portion of the taxes of such Tax Group attributable to the income of Holdings, Products and/or one or more Subsidiaries in an amount not to exceed the amount of any U.S. federal, state, state and/or local or foreign income taxes that the Borrower and/or its Subsidiaries, (as applicable) that Holdings, Products and/or the applicable Subsidiaries would have paid for such taxable period had Holdings, Products and/or the Borrower and/or its Subsidiaries, as applicable, applicable Subsidiaries been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup with respect to such taxes; provided that distributions attributable to the income of any Unrestricted Subsidiary shall be permitted only to the extent that such Unrestricted Subsidiary made distributions to Holdings, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings Products or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make Subsidiary for such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)purpose;
(c) a Restricted Payments may be made Payment to Holdings, pay for the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disabilityrepurchase, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales acquisition for value of Equity Interests of Holdings or any Parent Entity direct or indirect parent of Holdings held by any future, present or former employee, director, officer or consultant of Holdings, Products or any of their subsidiaries or any direct or indirect parent of Holdings pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however, that the aggregate Restricted Payments made under this clause (c) do not exceed $30,000,0005,000,000 in any calendar year, with unused amounts in any calendar year being permitted to be carried over to succeeding calendar years; provided, further, however, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds received by Holdings, Products or any of the Subsidiaries from the sale of Equity Interests (other than Disqualified Stock) of Holdings or any direct or indirect parent of Holdings (to the extent contributed to Holdings) to employees, directors, consultants, officers or employees consultants of Holdings, any Parent Entity, Products and the Borrower Subsidiaries or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provideddirect or indirect parent of Holdings that occurs after the Restatement Date, that such proceeds are not included in any determination of the Cumulative Credit, plus (yii) the amount of net cash proceeds of any key-key man life insurance policies received during such calendar yearby Holdings or any direct or indirect parent of Holdings (to the extent contributed to Holdings), and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower Products or the Subsidiaries in connection with after the ADT Transactions Restatement Date; provided that are foregone in return for Holdings or Products may elect to apply all or any portion of the receipt of Equity Interests), which, if not used aggregate increase contemplated by clauses (i) and (ii) above in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower Holdings, Products or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;present or
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Holdings may make Restricted Payments may be made to the holders of its equity interests in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower Holdings elects to apply to this Section 6.06(e7.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Holdings calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, at the time of the making of such Restricted Payment and after giving effect thereto, no Default or Event of Default has occurred and is continuing or would result therefrom; provided, further, no Restricted Payments may be made pursuant to this clause (e) from and after the First Amendment Effective Date;
(f) Holdings and the Subsidiaries may make Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Holdings and the Subsidiaries may make Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such personHoldings;
(h) Holdings may make Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders (or make Restricted Payments to any direct or indirect parent of Holdings to fund the payment by such direct or indirect parent of Holdings of dividends on such entity’s common stock) in an annual, (i) in such amounts as were made prior to the First Amendment Effective Date, and (ii) commencing with the First Amendment Effective Date, in an amount not to exceed the sum of (x) $100,000,000 40,000,000, plus (y) 6.0% per annum of the net proceeds received by Holdings after the Restatement Date from any public offering of Equity Interests of Holdings or any direct or indirect parent of Holdings;$0.0 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with remainder of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to in which the Ninth Incremental Assumption and First Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)occurs and for each fiscal year thereafter;
(i) Holdings may make Restricted Payments may be made to any direct or indirect parent of Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Holdings or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05 (other than Section 7.05(e)) of the person formed or acquired (if such person is not already a Subsidiary) into the Borrower Holdings or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10, and with it being understood and agreed that no Investments in the form of Permitted Business Acquisitions shall be permitted to be made at any time on or after the First Amendment Effective Date;
(j) other [Reserved];
(k) Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be Payments made on or within 60 days after the Ninth Incremental Assumption date of declaration thereof, if at the date of declaration such payment would have been permitted under (and Amendment Agreement Effective Date was counted against any applicable basket under) this Agreement;
(l) Holdings and the Subsidiaries may make Restricted Payments in an aggregate amount not from and after the First Amendment Effective Date (together with any payments or distributions made from and after the First Amendment Effective Date in respect of any Junior Financing or Canadian Financing permitted under Section 7.09(b)(vii)) equal to exceed the greater of (x) $415,000,000 75,000,000 and 0.15 times (y) 3.0% of Consolidated Total Assets as of the EBITDA calculated on a Pro Forma Basis for end of the Test Period ended fiscal quarter immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date for which financial statements have been delivered pursuant to this Section 6.06(j4.05 or 6.04, as applicablenot to exceed $5,000,000, so long as at the time of such Restricted Payment and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing or would result therefrom;
(m) shall not use capacity hereunder)Holdings and the Subsidiaries may make additional Restricted Payments; provided, that at the time of such Restricted Payment and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing;
continuing or would result therefrom, (kB) [reserved];
(lx) during any Collateral Suspension period, the Total Net Leverage Ratio shall not be in excess of 3.50:1.00 on a Pro Forma Basis and (y) at any other time, the Total Net Leverage Ratio shall not be in excess of 4.00:1.00 on a Pro Forma Basis and (C) the Total Net Senior First Lien Secured Leverage Ratio shall not be in excess of 3.00:1.00 on a Pro Forma Basis; provided, that any Restricted Payments made in reliance of this Section 7.06(m) shall reduce the Cumulative Credit in an amount equal to the amount of such Restricted Payment; provided, further, that the Cumulative Credit shall not be reduced below zero as a result thereof; provided, further, that no Restricted Payments may be made with Excluded Contributionspursuant to this clause (m) from and after the First Amendment Effective Date;
(mn) other Restricted Payments so long asthe distribution, immediately after giving effect as a dividend or otherwise, of Equity Interests of, or Indebtedness owed to such payment Holdings, Products or distribution on a Pro Forma Basisany Subsidiary by, the Net Total Leverage Ratio is not greater than 2.90 to 1.00Unrestricted Subsidiaries; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that distributions may be made pursuant to this clause (n) from and after the First Amendment Effective Date;
(o) payments or distributions to dissenting stockholders required pursuant to applicable Law, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of all or substantially all of the assets of Holdings, Products and the Subsidiaries, taken as a whole, that complies with Section 7.05 (other than Section 7.05(e)); and
(p) any Restricted Payments Incurrence Clause shall be made without giving pro forma effect Payment, if applicable: (i) in amounts required for any direct or indirect parent of Holdings to pay fees and expenses (including franchise or similar taxes) required to maintain its corporate existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of any direct or indirect parent of Holdings and general corporate operating and overhead expenses of any direct or indirect parent of Holdings, in each case, to the extent such fees and expenses are attributable to the ownership or operation of Holdings, if applicable, Products and their subsidiaries; (ii) in amounts required for any direct or indirect parent of Holdings, if applicable, to pay interest and/or principal on Indebtedness the proceeds of which have been contributed to Holdings, Products or any Subsidiary and that has been guaranteed by, or is otherwise considered Indebtedness of, Holdings Incurred in accordance with Section 7.01; and (iii) in amounts required for any direct or indirect parent of Holdings to pay fees and expenses related to any substantially concurrent Restricted Payment equity or debt offering of such parent (whether or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofnot successful).
Appears in 1 contract
Samples: Credit Agreement (Rayonier Advanced Materials Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any shares of its Equity Interests Capital Stock (other than dividends and distributions on Equity Interests the common stock of CommNet payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) shares of the person paying such dividends or distributionscommon stock of CommNet) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary Controlled Downstream Affiliate to purchase or acquire) any shares of the Borrower’s Equity Interests any class of its Capital Stock or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
: (a) Restricted Payments subject to clause (c) below, any Controlled Downstream Affiliate (including the Borrower) may be made declare and pay dividends to, repurchase its Capital Stock from or make other distributions to the Borrower CommNet or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary Controlled Downstream Affiliate on a pro rata basis (or more favorable basis from the perspective of the Borrower or such SubsidiaryBorrower) based on their relative ownership interests);
, (b) Restricted Payments CommNet may be purchase or redeem its Capital Stock, declare and pay dividends or make other distributions (x) following any Excess Cash Flow Payment Date occurring in any fiscal year after the fiscal year ending September 30, 1999 if (i) the Borrower shall have made all payments and prepayments of Term Loans and reductions of Revolving Credit Commitments required to have been made by the Borrower in respect of (i) overheadsuch immediately preceding fiscal year, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityincluding pursuant to Section 2.12(d), (ii) fees and expenses related to any public offering or private placement the aggregate amount of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes such dividends and other fees and expenses distributions made in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount such fiscal year does not to exceed the amount of any U.S. federal, state, local or foreign taxes that Excess Cash Flow for the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order previous fiscal year which was not required to permit Holdings or any Parent Entity be applied pursuant to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (iSection 2.12(d) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
continuing or (ky) [reserved];
in respect of payments permitted under Section 6.07(b) and (lc) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default Controlled Downstream Affiliate shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesCommNet, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in other Wholly Owned Subsidiary to take any manner that complies with action prohibited by this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)6.06.
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) any Restricted Payments Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Restricted Subsidiary of the Borrower (or, in the case of non-Restricted Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or any Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Restricted Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower or any of its Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement or similar agreement, plan or arrangement or any Plan and assets incidental the Borrower and Restricted Subsidiaries may declare and pay dividends to such equity ownership the Borrower or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directorsfor such purposes, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 U.S.$5 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(ed) so long as (i) provided no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentthen exists or would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00Borrower may declare and pay dividends or make other distributions, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for in any year, without duplication, U.S.$10.0 million plus the period from Available Amount as of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per end of the immediately preceding fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood quarter; provided that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments such dividends or distributions may be made only after giving effect to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted payments required to be made pursuant to Section 6.04; provided, that 2.11(e) and on or within five (A5) Business Days after such payments are made;
(e) any Restricted Payment shall be made substantially concurrently with the closing of such Investment Subsidiary may declare and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets pay dividends or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary make other distributions in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance comply with the requirements terms of Section 5.10;
(j) other Restricted Payments, combined with payments the Plan of Reorganization and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater Canadian Plan of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special DividendReorganization; and
(of) Restricted Payments may be made provided no Default under Section 7.01(c) or Event of Default then exists or would result therefrom, repurchases, redemptions or exchanges of Equity Interests of directors, consultants, officers or employees of the Borrower or any of its Affiliates on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the vesting date of declaration thereof such Equity Interest to satisfy all or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled tax obligations corresponding to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)vested Equity Interests.
Appears in 1 contract
Samples: Credit Agreement (SemGroup Corp)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of collectively, the foregoing, “Restricted PaymentsDistributions”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Company may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower Company or to any Wholly Wholly-Owned Subsidiary of the Borrower Company (or, in the case of nonnon Wholly-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary that is a direct or indirect parent shareholder of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Company or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Company may be made declare and pay dividends or make other distributions to any Parent Entity in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerCompany, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount relevant jurisdiction of any U.S. federal, state, local Parent Entity attributable to the Company or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, Subsidiaries and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii)) above, the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower Company and its Subsidiaries (which shall be 100% at any time thatfor so long as such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Company or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) Restricted Payments the Company may be made declare and pay dividends or make other distributions to Holdings, any Parent Entity the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Company or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year the greater of $48,000,000 46.0 million and 10.0% of EBITDA as of the end of the most recently completed Test Period (plus (x) the amount of net proceeds contributed to the Borrower Company that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) the Company may pay dividends to its equity holders; provided, that, in each case, no Default or Event of Default has occurred and is continuing and (ii) or would result therefrom and, after giving effect to such Restricted Paymentthereto, that the Net Total Leverage Ratio on a Company and its Subsidiaries shall be in Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedCompliance;
(f) Restricted Payments the Company may be made in connection with pay dividends on the consummation of Closing Date to consummate the ADT Transactions;
(g) Restricted Payments the Company may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments the Company may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Company from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Company or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Company;
(i) Restricted Payments the Company may be made make distributions to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or a Subsidiary or (2) the merger, consolidation merger or amalgamation (to the extent permitted in Section 6.05) of the person Person formed or acquired into the Borrower Company or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;; and
(j) the Company may pay other Restricted Payments, combined with payments and dividends or distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 155.0 million and 0.15 times the 35.0% of EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one end of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).most recently completed Test Period..
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Magnera Corp)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”equity); provided, however, that:
(a) Restricted Payments any Subsidiary of the Company may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower Company or to any Wholly Owned Subsidiary of the Borrower Company (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Company or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Company may be made declare and pay dividends or make other distributions (directly or indirectly) (i) to any Parent Entity in respect of (iA) overhead, legal, accounting accounting, consulting and other professional fees and expenses of Holdings or any Parent Entity, (iiB) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iiiC) franchise and or similar taxes Taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s direct or indirect) ownership of the BorrowerCompany, (ivD) payments permitted by Section 6.07(b) (other than except to the extent expressly subject to this Section 6.07(b)(vii6.06)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (viE) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses clauses (iA) and (iiiB), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (iA) and (iiiB) that are allocable to the Borrower Company and its Subsidiaries (which shall be 100% at any time thatfor so long as such Parent Entity, as the case may be, (x) Holdings beneficially owns no material assets other than the Equity Interests in the Company); (ii) with respect to any taxable period for which the Company is or has been a partnership or disregarded entity for U.S. federal income tax purposes, to any person that (directly or indirectly) held Equity Interests of the Borrower Company during such taxable period (a) to the extent such tax distributions are permitted under (I) the Amended and assets incidental to such equity ownership Restated United States Tax Agreement for NCL Corporation Ltd., dated January 24, 2013 or the Amended and Restated Profits Sharing Agreement for NCL Corporation Ltd., dated January 22, 2013, each as in effect on the Closing Date, (collectively, the “Tax Agreements”) or (yII) any amended version of the Tax Agreements to the extent such amendments are not materially adverse to the Lenders (collectively, the “Amended Tax Agreements”) and (b) to the extent not otherwise permitted under clause (a), tax distributions in respect of audit adjustments resulting from audits of the Company and/or its Subsidiaries commencing after the Closing Date, determined in a manner consistent with and subject to the limitations set forth in the Tax Agreements and the Amended Tax Agreements; and (iii) with respect to any taxable period for which the Company and any Parent Entity owns directly files an affiliated, consolidated, combined or indirectly no material assets other than Equity Interests of Holdings and unitary tax return in any other relevant jurisdiction, distributions to such Parent Entity and assets incidental in amount not to exceed the amount of any Taxes in such equity ownershipjurisdiction that the Company and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Company and/or its Subsidiaries, as applicable, been stand-alone taxpayers in such jurisdiction (less any portion of such amounts directly payable by the Company and/or its Subsidiaries);; provided, that distributions in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Company or any of its Restricted Subsidiaries for such purpose.
(c) Restricted Payments the Company may be made to Holdings, declare and pay dividends or make other distributions (directly or indirectly) the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Company or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year the greater of $48,000,000 [*] and [*]% of Consolidated Total Assets (plus (x) the amount of net proceeds contributed to the Borrower Company that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as the Company may pay dividends (idirectly or indirectly) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its equity holders in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower Company elects to apply to this Section 6.06(e(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Company shall be in Pro Forma Compliance;
(f) Restricted Payments the Company may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hg) Restricted Payments the Company may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not no greater than [*]% per annum of Market Capitalization;
(h) the Company may declare and pay dividends or make other distributions (directly or indirectly) to exceed $100,000,000 for its equity holders if after giving effect to such dividend or distribution, the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date Total Leverage Ratio is equal to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior or less than 3.30 to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);1.00; and
(i) Restricted Payments the Company may be made to Holdings declare and pay dividends or any Parent Entity to finance any Investment that if made by the Borrower make other distributions (directly or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interestsindirectly) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date its equity holders in an aggregate amount not to exceed the greater of $415,000,000 [*] and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date [*]% of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Consolidated Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Assets.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted Payments may be made to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-non Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 7.04);
(b) the Borrower may make Restricted Payments may be made to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) Holdings’ existence and its Holdings’ (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as Holdings or the applicable Parent Entity, as the case may be, owns no assets other than the Equity Interests in the Borrower, Holdings or another Parent Entity) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local the relevant jurisdiction of Holdings or foreign tax purposes of which a direct or indirect parent of any Parent Entity attributable to the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of Holdings incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosing Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at for so long as Holdings or any time thatParent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) the Borrower may make Restricted Payments may be made to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of Holdings, any Parent Entity, Holdings, the Borrower or any of the its Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, year and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the its Subsidiaries in connection with the ADT Transactions Transaction that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, further that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.067.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied[Reserved];
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions[Reserved];
(g) the Borrower may make Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) the Borrower may make Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower (at any time, whether before or after the Closing Date) from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) the Borrower may make Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person Person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(j) other the Borrower may make Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on Payments to Holdings or after the Ninth Incremental Assumption and Amendment Agreement Effective Date any Parent Entity in an aggregate amount not necessary to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior fund payments to the date Fund and the Fund Affiliates of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption type and Amendment Agreement Effective Date in amounts otherwise permitted pursuant to this Section 6.06(jSections 7.07(b)(ix) shall not use capacity hereunderand (xiv); provided, that such payments are not made directly by the Borrower or any of its Subsidiaries;
(k) Restricted Payments made within 60 days after the date of declaration thereof, if at the date of declaration such payment would have been permitted under (and was counted against any applicable basket under) this Agreement;
(l) so long as no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) continuing or would result therefrom, the Borrower may make Restricted Payments may be made with Excluded Contributionsin an aggregate amount of $50,000,000;
(m) other any Restricted Payments so long asPayment, immediately provided that (A) after giving effect to such payment or distribution on a Pro Forma Basisthereto, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;continuing or would result therefrom and (B) (1) the Availability, both after giving effect to such Restricted Payment and at all times during the 30 calendar days immediately prior to such Restricted Payment, in each case on a Pro Forma Basis, would be, and was, greater than the Minimum Level 5 Availability or (2) (x) the Availability, both after giving effect to such Restricted Payment and at all times during the 30 calendar days immediately prior to such Restricted Payment, in each case on a Pro Forma Basis, would be, and was, greater than the Minimum Level 2 Availability and (y) the Fixed Charge Coverage Ratio, on a Pro Forma Basis both before and after giving effect to such Restricted Payment, shall not be less than 1.1:1.0; and
(n) the Borrower may make Restricted Payments constituting to Holdings the proceeds of which may be utilized by Holdings to pay the Special Dividend; and
(o) Restricted Payments may provided that the Special Dividend shall be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 declared no later than 45 days after the date of declaration thereof or Closing Date and if not declared on the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesClosing Date, the Borrower mayshall deliver to the Administrative Agent a bringdown solvency opinion to the solvency opinion delivered pursuant to Section 5.02(e)(ii), in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one as of the categories of permitted Restricted Payments (or any portion thereof) described in declaration date for the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Special Dividend.
Appears in 1 contract
Samples: Abl Credit Agreement (Noranda Aluminum Holding CORP)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) ), in each case other than in connection and substantially concurrently with a Permitted Change in Control (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (vv)(A) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup or (B) in respect of any taxable period for which the Borrower is treated as a partnership or disregarded entity for U.S. federal and/or applicable state, local or foreign tax purposes except in the case in which the Borrower is treated as a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect owners of the Borrower in an amount not to exceed the product of (i) the amount of taxable income of the Borrower and/or its Subsidiaries for such taxable period, calculated without regard to tax-deductible amortization of intangible assets (including any amortization resulting from any increase in basis under Sections 743(b) and 734(b) of the Code (and any equivalent provisions of applicable tax law)) and (ii) the Hypothetical Tax Rate, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) existence and any Parent Entity’s ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period (or portion thereof) for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state state, local or local income foreign tax purposes, distributions Restricted Payments to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or and/or foreign income taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period (or portion thereof) had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup (without duplication, for the avoidance of doubt, of any amount of such taxes actually directly paid by the Borrower and/or any of its Subsidiaries to the relevant taxing authority, if any) and (vi) customary salary, bonus bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x) Holdings any Parent Entity owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Borrower);
(c) Restricted Payments may be made to Holdingsmade, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity the Borrower (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied[reserved];
(f) Restricted Payments may be made in connection with as required under the consummation Tax Matters Agreement; provided that such payments are not duplicative of the ADT Transactionspayments under clause (b) of this Section 6.06;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)[reserved];
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 50,000,000 and 0.15 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)Period; provided, provided that no Event of Default shall have occurred and be continuingcontinuing or would result therefrom;
(k) [reserved];
(l) Restricted Payments may be made with in an aggregate amount not to exceed the aggregate amount of Excluded Contributions;
(m) other any Restricted Payments Payment may be made so long asas no Default or Event of Default has occurred and is continuing or would result therefrom and, immediately after giving effect to such payment or distribution on a Pro Forma BasisRestricted Payment, the Net Total Leverage Ratio is on a Pro Forma Basis would not greater than 2.90 exceed 1.75 to 1.00; provided, that no Event of Default shall have occurred and be continuing;and
(n) Restricted Payments constituting the Special Dividendany consideration, payment, dividend, distribution or other transfer in connection with a Permitted Securitization Financing.; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment or redemption, purchased, defeasance or other payment would have complied with the provisions of this Agreement. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the fair market value thereof, which shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Restricted Payment or as of the date of the definitive agreement with respect to such Restricted Payment. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses Section 6.06(a) through (n) but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (Cerence Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of any Borrower may make Restricted Payments may be made to the such Borrower or to any Wholly Owned Subsidiary of the such Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the such Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the such Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not such Borrower or a Subsidiary is permitted under Section 7.04);
(b) each Borrower may make Restricted Payments may be made to any Holdco in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entitysuch Holdco, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity such Holdco whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) such Holdco’s existence and its (or any Parent Entitysuch Holdco’s indirect) ownership of the such Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as such Holdco owns no assets other than the Equity Interests in such Borrower) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local the relevant jurisdiction of such Holdco attributable to such Borrower or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of such Holdco incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosing Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entitysuch Holdco, in each case in order to permit Holdings or any Parent Entity such Holdco to make such payments; providedprovided that, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the such Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as such Holdco, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to in such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(ed) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, each Borrower may make Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings Holdco or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the such Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person Person formed or acquired into the such Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(je) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be Payments made on or within 60 days after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of declaration thereof, if at the date of declaration such Restricted Payment payment would have been permitted under (it being understood that and was counted against any applicable basket under) this Agreement; and
(f) each Borrower may make any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(jPayment; provided that (x) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
continuing or would result therefrom and (ky) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default Payment Conditions shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Constellium SE)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise)) to, whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoing, a “Restricted PaymentsPayment”); provided, however, that:
(a) any Subsidiary may make Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other direct owner of Equity Interests of such Subsidiary; provided that, in the case of a Subsidiary that is a non-Wholly-Owned Subsidiary, (i) such dividends, repurchases or other distributions are made to all owners of such Subsidiary’s Equity Interests on a pro rata basis (or more favorable basis from the perspective of the Borrower or such SubsidiaryIntermediate Holdings and its Subsidiaries) based on their relative ownership interests)interests and (ii) any repurchase of its Equity Interests from a person that is not Intermediate Holdings or a Subsidiary is permitted under Section 6.04;
(b) prior to a Qualified IPO of Intermediate Holdings (and irrespective of any Qualified IPO of a Parent Entity), Intermediate Holdings or any Subsidiary may make Restricted Payments may be made to its direct parent entity in respect of (x) (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s indirect) ownership of the BorrowerIntermediate Holdings or any Subsidiary, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower Intermediate Holdings and its Subsidiaries (which shall be 100% at any time thatfor so long as Holdings or such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests in Intermediate Holdings or a Parent Entity) and (y) Intermediate Holdings may make Restricted Payments to any Parent Entity that files a consolidated U.S. federal tax return for any year that includes Intermediate Holdings and the Subsidiaries as part of the consolidated tax group, in each case in an amount not to exceed the amount that Intermediate Holdings and the Subsidiaries would have been required to pay in respect of federal, state, provincial or local taxes (as the case may be) in respect of such year if Intermediate Holdings and the Subsidiaries paid such taxes directly as a stand-alone group or, if less, the portion of the tax liabilities of such Parent Entity allocable to Intermediate Holdings and the Subsidiaries (which shall be 100% for so long as such Parent Entity owns no assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership Intermediate Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) prior to a Qualified IPO of Intermediate Holdings (and irrespective of any Qualified IPO of a Parent Entity), Intermediate Holdings or any Subsidiary may make Restricted Payments may be made to Holdings, Holdings or any other Parent Entity the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of Holdings (or any other Parent Entity), Intermediate Holdings, the Borrower or any of the Subsidiaries Subsidiary or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 20.0 million (plus (x) the amount of net proceeds contributed as equity to the Borrower Intermediate Holdings or any Subsidiary that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Intermediate Holdings or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower Intermediate Holdings or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as Intermediate Holdings may make Restricted Payments to (i) no Default or Event prior to a Qualified IPO of Default has occurred Intermediate Holdings and is continuing irrespective of any Qualified IPO of a Parent Entity, its direct Parent Entity and (ii) after giving effect to such Restricted Paymenta Qualified IPO of Intermediate Holdings, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made equity holders of Intermediate Holdings in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower Intermediate Holdings elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Intermediate Holdings calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) after giving effect thereto, the Senior Secured Leveraged Ratio on a Pro Forma Basis shall not be greater than 4.25 to 1.00;
(f) the Borrowers may make Restricted Payments may be made in connection with the consummation of the ADT 2006 Transactions;
(g) prior to a Qualified IPO of Intermediate Holdings (and irrespective of any Qualified IPO of a Parent Entity), Intermediate Holdings or any Subsidiary may make Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Intermediate Holdings may make Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period Net Proceeds received by Intermediate Holdings from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)public offering of Equity Interests of Intermediate Holdings or any direct or indirect parent of Intermediate Holdings;
(i) Restricted Payments may be made to Intermediate Holdings or any Subsidiary may make distributions to any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, provided that (A) such Restricted Payment distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed as equity to the Borrower Intermediate Holdings or a Subsidiary or (2) the merger, consolidation or amalgamation merger (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower Intermediate Holdings or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;; and
(j) other Intermediate Holdings may make Restricted Payments, combined with Payments to its equity holders in an amount necessary to (i) fund payments to the Fund and distributions under Section 6.09(b)(i)(Gthe Fund Affiliates of the type and in the amounts otherwise permitted pursuant to Sections 6.07(b)(ix) and (xiv), may ; provided that no such payment shall be made on by Intermediate Holdings or after the Ninth Incremental Assumption any Subsidiary directly and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately (ii) prior to the date consummation of a Qualified IPO of Intermediate Holdings (and irrespective of any Qualified IPO of a Parent Entity), pay dividends in respect of the UBS Preferred Stock (at the rate and on the terms in effect on the Closing Date) due within 60 days of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Payment.
Appears in 1 contract
Samples: Amendment Agreement (Momentive Performance Materials Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Subsidiary of Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments Borrower may be made declare and pay dividends or make other distributions to any Parent Company in respect of (i) overheadoverhead liabilities of such Parent Company, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) reasonable fees and expenses related to any public offering offering, financing, investment, disposition or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) in connection with the business of Borrower or any Subsidiary and (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) the existence and its (or any Parent Entity’s indirect) ownership of such Parent Company; provided that the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the aggregate amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus dividends and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order distributions made pursuant to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses this paragraph (ib) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)$100,000 annually;
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06[reserved];
(d) any person may make non-cash the foregoing shall not prohibit noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(ei) so long with respect to each tax year (or portion thereof) that Borrower qualifies as a Flow Through Entity, the distribution by Borrower to the holders of the Equity Interests of Borrower of an amount equal to the product of (A) the amount of aggregate net taxable income allocated by Borrower to the direct holders of the Equity Interests of Borrower for such period and (B) the Presumed Tax Rate for such period shall be permitted and (ii) with respect to any tax year (or portion thereof) that Borrower does not qualify as a Flow Through Entity and is part of a group filing consolidated or combined federal, state or local income tax returns of which a direct or indirect parent of Borrower is the common parent, the payment of dividends or other distributions to any direct or indirect holders of Equity Interests of Borrower in amounts required for such holder to pay consolidated, combined or similar federal, state or local income taxes (as the case may be) imposed directly on such holder to the extent such income taxes are attributable to the income of Borrower and the Subsidiaries shall be permitted; provided, however, that in each case the amount of such payments in respect of any tax year does not exceed the amount that Borrower and the Subsidiaries would have been required to pay in respect of federal, state or local income taxes (as the case may be) in respect of such year if Borrower and the Subsidiaries paid such taxes directly as a stand-alone taxpayer (or stand-alone group) less any such taxes payable directly by Borrower or the Subsidiaries; and
(f) Borrower may declare and pay dividends or make other distributions to holders of its Equity Interests; provided that (i) no Default or Event of Default has occurred and is continuing exists at the time of any such dividend or distribution or would exist immediately after giving effect thereto and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is dividends and other distributions made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
this paragraph (f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Closing Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount shall not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)5.0 million.
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
: (a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
; (b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity Entity, whether or not consummated, (iii) franchise and similar taxes 165 Doc#: US1:15347125v11 Taxes and other fees and expenses in connection with the maintenance of its Holdings’ or Parent’s (or any Parent Entity’s) existence and its Holdings’ or Parent’s (or any Parent Entity’s indirect) ownership of the Borrower, (iv) (1) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (2) to fund payments in respect of any agreements and arrangements of Holdings, Parent or any other Parent Entity in existence on the Closing Date, so long as copies of such agreements and arrangements have been provided to the Administrative Agent (or its counsel) prior to the Closing Date and/or (3) to fund payment obligations substantially similar to the types of payments of Holdings, Parent or any other Parent Entity described in clause (2) above, (v) (a) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax Tax group for U.S. federal and/or applicable state, local or foreign tax Tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax Tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state state, local or local income tax foreign Tax purposes, distributions Restricted Payments to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or and/or foreign taxes income Taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup and (b) in respect of any taxable period for which the Borrower is a partnership or disregarded entity for U.S. federal and/or applicable state, local or foreign Tax purposes (other than a partnership or disregarded entity described in clause (a)), Restricted Payments to any direct or indirect parent of the Borrower in an amount necessary to permit such direct or indirect parent of the Borrower to pay or to make a pro rata distribution to its owners such that each direct or indirect owner of the Borrower receives an amount from such pro rata distribution sufficient to enable such owner to pay its U.S. federal, state, local and/or foreign income Taxes (as applicable) attributable to its direct or indirect ownership of the Borrower and its Subsidiaries with respect to such taxable period (assuming that each owner is subject to Tax at the highest combined marginal federal, state, local and/or foreign income Tax rate applicable to any owner for such taxable period and taking into account the deductibility of state and local income Taxes for U.S. federal income Tax purposes (and any limitations thereon)), and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its the Subsidiaries (which (x) shall be 100% at any time that, as the case may be, (x1) Holdings Parent and Holding owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y2) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Parent, Holdings and any other Parent Entity and assets incidental to such equity ownershipownership and (y) in all other cases shall be as determined in good faith by the Borrower);
; (c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings Holdings, Parent, or any Parent Entity (including related stock appreciation rights or similar securities) held by then present future, current or former directors, consultants, officers officers, members of management or employees (and their respective estates, heirs, family members, spouses, domestic partners, former spouses or former domestic partners) of any Parent Entity, Parent, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issuedissued or otherwise; provided, that the aggregate amount of such purchases or redemptions under this clause (c) purchased other than upon such person’s death, disability, retirement or termination of employment or pursuant to any Plan or stock rights agreement shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed Fiscal Year the greater of $415,000,000 25,000,000 and 0.15 0.10 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).then most recently 166 Doc#: US1:15347125v11
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of Table of Contents capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary subsidiary of the Borrower to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoingforegoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, “Restricted PaymentsDividends”); provided, however, that:
(a) Restricted Payments (i) any Subsidiary may be made to the Borrower declare and pay dividends to, or any Wholly Owned Subsidiary of the Borrower (ormake other distributions to, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); and (ii) to the extent permitted by Section 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings and actual Tax liabilities of Holdings for the consolidated group of which Holdings is parent to the extent that Holdings, and not the Borrower, (A) files a consolidated U.S. federal tax return that includes the Borrower and its Subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or any Parent Entitylocal taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group, and (B) actually pays, or will pay, as the consolidated tax payor, such taxes for the Borrower and its Subsidiaries, it being agreed that if such dividends and distributions are paid to Holdings and Holdings does not make such consolidated tax payments on the date when the Borrower and its subsidiaries are required to pay such taxes, such failure shall be an Event of Default that shall continue until all such taxes are paid, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt equity securities of Holdings or any Parent Entity whether or that is not consummatedconsummated and maintaining the corporate existence of the special purpose Unrestricted Subsidiary formed to own the Netcentives Assets, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, and (iv) after the earlier of the one-year anniversary of the Closing Date and the date on which no Bridge Financing remains outstanding, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, in order to permit Holdings to make (A) payments permitted by Section 6.07(b) and (B) interest payments in respect of Indebtedness of Holdings permitted by Section 6.09(b) (other than Section 6.07(b)(vii)), (v) in respect Guarantees of any taxable period for which Indebtedness of the Borrower and/or or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, the proceeds of which are used Holdings in order to enable Holdings may purchase or redeem the Equity Interests of Table of Contents Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of dividends for such purchases or redemptions under this clause (cSection 6.06(c) shall not exceed (i) in any fiscal year (A) $48,000,000 12,500,000 (plus any amounts carried over from prior years, up to $25,000,000 in the aggregate) plus (xB) the amount of net proceeds contributed to the Borrower that were (x) Excluded Equity Proceeds received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included arrangements as set forth in any determination a certificate of a Responsible Officer of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests)Borrower, which, if not used in any fiscal year, may be carried forward to any subsequent fiscal calendar year; , and provided, further, that cancellation (ii)amounts received in respect of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06key man life insurance policy proceeds;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) after an applicable Bridge Financing Covenant Release, so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentor would result therefrom, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments any person may be made make additional dividends or other distributions in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is with all other Dividends and other distributions made pursuant to this clause (ae) not to exceed $35,000,000;
(f) after an applicable Bridge Financing Covenant Release, any person may make distributions to minority shareholders of any subsidiary that is acquired pursuant to a Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with respect to shares of such subsidiary held by such shareholders;
(g) the Borrower may declare and pay dividends to Holdings (i) on the Closing Date consisting solely of the definition Netcentives Assets or (ii) from amounts received from a concurrent dividend or other distribution or other concurrent payment from the special purpose Unrestricted Subsidiary formed to own the Netcentives Assets for so long as such person remains an Unrestricted Subsidiary; provided, that no Default or Event of “Cumulative Credit”Default shall have occurred and be continuing or would result therefrom;
(h) after an applicable Bridge Financing Covenant Release, the Borrower may elect to declare and pay dividends to Holdings in an amount not to exceed the Available Free Cash Flow Amount, such election to be set forth specified as provided in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided, that (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and any related transactions (including, without limitation, the incurrence of any Indebtedness), and (ii) immediately after giving effect to the payment of such Dividend and any related transactions Table of Contents (including, without limitation, the incurrence of any Indebtedness) on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 2.25 to 1.0;
(fi) Restricted Payments the Borrower or any Subsidiary may be make any Dividend on the Closing Date used to fund the Transactions and the fees and expenses related thereto or made in connection with the consummation of the ADT Transactions;Transactions as described in the Offering Circular (including payments made pursuant to or as contemplated by the Transaction Documents, as in effect on the Closing Date); and
(gj) Restricted Payments the Borrower or any Subsidiary may be made to paymake payments of cash, or dividends, distributions or advances to allow Holdings or any Parent Entity such person to make payments, in payments of cash, in lieu of the issuance of fractional shares, shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); providedhowever, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (payments, dividends, distributions or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause advances shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)not exceed $4,000,000.
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) any Restricted Payments Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, directly or indirectly, the Borrower or any Restricted Subsidiary (or, with respect to any Restricted Subsidiary that is not a Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned SubsidiariesBorrower, to each parent of such Restricted Subsidiary (including the Borrower or Borrower, any other Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary and to each other owner of Equity Interests of such Subsidiary Restricted Subsidiary) on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Restricted Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental or any of its Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower or, to the extent such equity ownership Equity Interests were issued as compensation for services rendered on behalf of the Borrower or (y) any Subsidiary Loan Party, any employee of any Parent Entity owns directly Company, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or indirectly no material assets other than Equity Interests of Holdings partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Restricted Subsidiaries may declare and pay dividends to the Borrower or any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon for such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issuedpurposes; provided, that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 U.S.$10.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (xi) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (yii) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided;
(c) if no Default or Event of Default then exists or would result therefrom, further, that cancellation of Indebtedness owing to then the Borrower may declare and pay dividends or make other distributions from the proceeds of any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower substantially concurrent issuance or its Subsidiaries in connection with a repurchase sale of Equity Interests permitted to be made under this Agreement other than an Additional Equity Contribution or a Specified Equity Contribution; provided, that the proceeds of Holdings an issuance or any Parent Entity will sale to a Restricted Subsidiary may not be deemed used to constitute a Restricted Payment for purposes of this Section 6.06declare or pay dividends or make other distributions;
(d) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as the Borrower may declare and pay dividends or make other distributions to the MLP Entity in order to make any payment, prepayment or settlement with respect to the Deferred True-up Obligation to the extent permitted by Section 6.09(d);
(f) the Borrower may repay capital invested in it by the MLP Entity or may declare and make distributions on or with respect to the Equity Interests of the Borrower or any other Loan Party with Available Cash on a quarterly basis; provided, that immediately before and after giving effect to such repayment, declaration or distribution, (i) no Default or Event of Default has occurred and is continuing then exists or would result therefrom, and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio Borrower shall be in compliance (on a Pro Forma Basis is not greater than 3.65 and after giving effect to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion the making of such distribution) with the Financial Performance Covenants as of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) end of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;preceding fiscal quarter; and
(g) Restricted Payments the Borrower may be made make quarterly distributions to pay, or to allow Holdings or any Parent the MLP Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that in excess of any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be tax distributions permitted to be made by the MLP Entity pursuant to Section 6.046.2 of the MLP Entity’s Partnership Agreement and calculated as if the MLP Entity did not hold any assets other than Equity Interests of the Borrower; provided, that that, (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate may not make any such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or distribution after the Ninth Incremental Assumption occurrence, and Amendment Agreement Effective Date in during the continuance, of an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall pursuant to Sections 7.01(b), (c), (f), (h) or (i), and (ii) unless the Secured Parties have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment exercised or the consummation of Required Lenders have voted to exercise any redemption, purchase, defeasance rights or other payment within 60 days after remedies pursuant hereto or under the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesCollateral Documents, the Borrower maymay make only one such quarterly distribution after the occurrence, in its sole discretionand during the continuance, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or of any portion thereof) in any manner that complies with this covenant and at the time other Event of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Default.
Appears in 1 contract
Dividends and Distributions. Declare (i) declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions), or (ii) or directly or indirectly redeem, purchase, retire retire, obtain the surrender of or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, may make Restricted Payments to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);Loan Party; and
(b) the Borrower may make Restricted Payments may be made to Holdings (i) in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings (other than in respect of expenses of the type referred to in subclause (iv) below) or any Parent Entityas required to administer the Cases, (ii) fees and expenses related to any public offering or private placement in respect of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iviii) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in with respect of to any taxable period for which tax year or portion thereof that the Borrower and/or any of its Subsidiaries are members of does not qualify as a consolidatedFlow Through Entity, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions may make Restricted Payments to any direct or indirect parent company of the Borrower that files a consolidated U.S. federal, state or local income tax return that includes the Borrower and the Subsidiaries, in each case in an amount not to exceed the amount that the Borrower and the Subsidiaries would have been required to pay in respect of federal, state or local income taxes (as the case may be) payable on such returns in respect of such year if the Borrower and the Subsidiaries paid such taxes directly as a stand-alone taxpayer (or stand-alone group) (and, if any Verso Entity files such tax return, Holdings may make Restricted Payments to such Verso Entity in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes Restricted Payments that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupbe permitted to make to Holdings pursuant to this subclause (iii)), and (viiv) in respect of customary salary, bonus and other benefits benefits, payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent EntityHoldings, in each case in order to permit Holdings or any Parent Entity to make such payments; providedprovided that, that in the case of subclauses clauses (i) and (iiiii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i) and (iiiii) that are allocable to the Borrower and its the Subsidiaries (which shall be 100% at any time that, for so long as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, further, that the aggregate amount of such purchases or redemptions under all Restricted Payments made by the Borrower pursuant to this clause (cSection 6.06(b) shall not exceed in any fiscal year $48,000,000 (plus (x) 2.0 million during the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions term of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Superpriority Senior Debtor in Possession Term Loan Agreement (Verso Paper Holdings LLC)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any subsidiary of the U.S. Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to Holdings or the U.S. Borrower or to any Wholly Owned Subsidiary of the U.S. Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the U.S. Borrower or any Subsidiary subsidiary that is a direct or indirect parent of such Subsidiary subsidiary and to each other owner of Equity Interests of such Subsidiary subsidiary on a pro rata basis (or more favorable basis from the perspective of the U.S. Borrower or such Subsidiarysubsidiary) based on their relative ownership interests);
(bi) Restricted Payments the U.S. Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (iA) Holdings’ overhead, Holdings’ franchise or other similar taxes required to maintain Holdings’ existence, legal, accounting and other professional fees and expenses of Holdings or any Parent EntityHoldings, (iiB) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iiiC) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, U.S. Borrower and (ivii) payments permitted by Section 6.07(b) (Holdings may declare and pay dividends or make other than Section 6.07(b)(vii)), (v) distributions to Parent in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary parent’s franchise or other similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions taxes required to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such paymentsmaintain Parent’s existence; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of if Parent owns any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests Holdings at such time, such distributions shall be limited to an equitable portion of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)taxes;
(c) Restricted Payments Holdings may be made purchase or redeem (and the U.S. Borrower may declare and pay dividends or make other distributions to Holdings, the proceeds of which are used so to purchase or redeem the redeem) Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Holdings or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 7.5 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Holdings or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year and (y) of any key-man life insurance policies recorded during such calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) with respect to each tax year (or portion thereof) that the U.S. Borrower is a member of an affiliated, combined, consolidated or similar tax group for U.S. Federal, State or local income tax purpose (as applicable) of which a direct or indirect parent of Holdings is the common parent (a “Tax Group”), the payment of dividends or other distributions by the U.S. Borrower and/or Holdings to any direct or indirect parent company of Holdings in amounts required for such parent company to pay federal, state or local income taxes (as the case may be) of a Tax Group imposed directly on such parent company to the extent such income taxes are attributable to the income of Holdings and its Subsidiaries; provided, however, that in each case the amount of such payments in respect of any tax year does not exceed the amount that Holdings and its Subsidiaries would have been required to pay in respect of federal, state or local taxes (as the case may be) in respect of such tax year if Holdings and its Subsidiaries paid such taxes directly as a stand-alone taxpayer (or stand-alone group);
(f) so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) Holdings and the Subsidiaries shall be in compliance on a Pro Forma Basis after giving effect to such Restricted Payment, dividend or distribution with the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion Financial Performance Covenants as of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), most recent Test Period for which such election shall (unless such Restricted Payment is made financial statements were delivered pursuant to clause Section 5.04(a) or (ab) or, if prior to the first delivery date for such financial statements hereunder, as of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer end of the Borrower, period for which notice shall set forth calculations in reasonable detail the amount most recent financial statements of Cumulative Credit immediately prior to such election Holdings are available and if the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests last day of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made is prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by first Test Period for which the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; providedFinancial Performance Covenants are tested, that (A) such Restricted Payment the levels for the first Test Period for which the Financial Performance Covenants are tested shall be made substantially concurrently with the closing deemed to apply for such purpose, Holdings may declare and pay dividends or other distributions to holders of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or its Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date Interests in an aggregate amount not to exceed the greater portion, if any, of $415,000,000 the Applicable Amount on the date of such election that Holdings elects to apply to this Section 6.06(f), and 0.15 times the EBITDA calculated U.S. Borrower may distribute equal amounts to Holdings for such purpose;
(g) [Reserved];
(h) so long as no Default or Event of Default has occurred and is continuing or would result therefrom and Holdings and the Subsidiaries shall be in compliance on a Pro Forma Basis for after giving effect to such dividend or distribution with the Financial Performance Covenants as of the most recent Test Period ended immediately for which financial statements were delivered pursuant to Section 5.04(a) or (b) or, if prior to the first delivery date for such financial statements hereunder, as of the end of the period for which the most recent financial statements of Holdings are available and if the last day of any such period is prior to the first Test Period for which the Financial Performance Covenants are tested, the levels for the first Test Period for which the Financial Performance Covenants are tested shall be deemed to apply for such purpose, Holdings may declare and pay additional dividends or other distributions to holders of its Equity Interests in an aggregate amount not to exceed, together with the amount of Junior Debt Payments pursuant to Section 6.09(b)(i)(2)(w)(I), $150.0 million, and the U.S. Borrower may distribute equal amounts to Holdings for such purpose;
(i) Holdings may make any dividend or distribution within 60 days after the declaration thereof if, at the date of declaration, such Restricted Payment payment would have complied with this Section 6.06 (it being understood that any Restricted Payments made prior to such dividend shall be applied against the Ninth Incremental Assumption and Amendment Agreement Effective Date applicable clause pursuant to this Section 6.06(j) shall not use capacity hereunderwhich it would have been permitted for purposes of calculating future availability thereunder); provided, that and
(j) so long as no Default or Event of Default shall have has occurred and is continuing or would result therefrom and Holdings and the Subsidiaries shall be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately in compliance on a Pro Forma Basis after giving effect to such payment dividend or distribution on a Pro Forma Basiswith the Financial Performance Covenants as of the most recent Test Period for which financial statements were delivered pursuant to Section 5.04(a) or (b) or, if prior to the first delivery date for such financial statements hereunder, as of the end of the period for which the most recent financial statements of Holdings are available and if the last day of any such period is prior to the first Test Period for which the Financial Performance Covenants are tested, the Net Total Leverage Ratio is not greater than 2.90 levels for the first Test Period for which the Financial Performance Covenants are tested shall be deemed to 1.00; providedapply for such purpose, that no Event of Default shall have occurred Holdings may declare and be continuing;
pay dividends or other distributions to Finance LLC (ni) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely net cash proceeds received by reference to one category of permitted Restricted Payments (Holdings or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or Subsidiary from the incurrence of Indebtedness permitted to finance be incurred pursuant to Section 6.01(a)(ii), (ii) together with the amount of any such Restricted Payment (Junior Debt Repayments made pursuant to Section 6.09(b)(i)(2)(x), from the net cash proceeds received by Holdings or any portion thereofSubsidiaries from sales, transfers or other dispositions pursuant to Section 6.05(h) not to exceed $200.0 million, (iii) to the extent not required to be utilized to repay Term Loans pursuant to Section 2.11(c), and together with the amount of any Junior Debt Repayments made pursuant to Section 6.09(b)(i)(2)(y), from the net cash proceeds received by Holding or any Subsidiary from the Specified Asset Sale pursuant to and to the extent permitted by Section 6.05(j) and (iv) to the extent not required to be utilized to repay Term Loans pursuant to Section 2.11(c), and together with the amount of Junior Debt Repayments made pursuant to Section 6.09(b)(i)(2)(z), from Declined Proceeds, so long as, in the case of each of clause (i), (ii), (iii) or (iv) Finance LLC substantially contemporaneously uses such amounts to repay principal of Finance Notes.
Appears in 1 contract
Samples: Credit Agreement (Nalco Holding CO)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership ownership, or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year Fiscal Year $48,000,000 10,000,000 (which shall increase to $15,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, any Restricted Payments may be made in an aggregate amount equal to a portion of so long as the Cumulative Credit on Payment Conditions are satisfied at the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless time such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedPayments are made;
(f) Restricted Payments may be made on the Closing Date in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any a Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment dividend or distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;; or
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)10,000,000.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (DS Services of America, Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) Qualified Capital Stock of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) Qualified Capital Stock of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity the Borrower (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries Subsidiary or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 2.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;and
(dc) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests of the Borrower (other than dividends and distributions on such Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributionsBorrower) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any Equity Interests of the Borrower’s Equity Interests Borrower or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person Person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, a “Restricted PaymentsPayment”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests)[Reserved];
(b) the Borrower may make Restricted Payments may as shall be made in respect of necessary to allow Holdings (or any Parent Entity) (i) to pay operating expenses in the ordinary course of business and other corporate overhead, legal, accounting and other professional fees and expenses (including, without limitation, those owing to third parties plus any customary indemnification claims made by directors, officers, employees, members of management and consultants of Holdings (or any Parent Entity) attributable to the ownership or operations of Holdings, the Borrower and the Restricted Subsidiaries), (ii) to pay fees and expenses related to any public offering debt or private placement of Equity Interests equity offering, investment or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummatedsuccessful), (iii) to pay franchise and or similar taxes and other fees and expenses required in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerBorrower and in order to permit Holdings to make payments (other than cash interest payments) which would otherwise be permitted to be paid by the Borrower under Section 6.07(b), (iv) payments to finance any Investment permitted by to be made under Section 6.07(b6.04; provided, that (A) such Restricted Payments under this clause (other than iv) shall be made substantially concurrently with the closing of such Investment and (B) the Parent Entity shall, immediately following the closing thereof cause all property acquired to be contributed to the Borrower or, to the extent permitted under Section 6.07(b)(vii))6.04, one (1) of the Restricted Subsidiaries or the merger of the Person formed or acquired into the Borrower or, to the extent permitted under Section 6.04, one (1) of the Restricted Subsidiaries in order to consummate such Investment, and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) pay customary salary, bonus and other benefits payable to, and indemnities provided on behalf ofto directors, officers, directors and employees employees, members of Holdings management or any Parent Entity, in each case in order to permit consultants of Holdings or any Parent Entity to make the extent such payments; providedsalary, that in bonuses and other benefits are directly attributable and reasonably allocated to the case operations of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)Subsidiaries;
(c) the Borrower may make Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem (i) the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultantsofficers, officers employees, members of management or employees consultants of any Parent Entity, Holdings, the Borrower or any of its Subsidiaries (or the Subsidiaries estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) or by any Plan or any shareholders’ agreement then in effect upon such person’s deathPlan, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions Restricted Payments under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 5.0 million (plus the sum of the amount of (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar fiscal year from sales of Equity Interests Inter ests of Holdings or any Parent Entity to directors, consultantsofficers, officers employees, members of management or employees consultants of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided(or the estate, that such proceeds are not included in heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any determination of the Cumulative Creditforegoing), or any Plan and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar fiscal year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any the next subsequent calendar year; fiscal year and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase (ii) fractional shares of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06Interests;
(d) any person may make non-cash repurchases of Equity Interests in Holdings (or any Parent Entity), the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or similar Equity Interests if such repurchased Equity Interests represent a portion of the exercise price of such optionsoptions or taxes to be paid in connection therewith;
(e) [Reserved];
(f) the Borrower and any Subsidiary of the Borrower may make Restricted Payments to any direct or indirect member of an affiliated group of corporations that files a consolidated U.S. federal tax return with the Borrower (the “Tax Distributions”), provided that, such Tax Distributions shall not exceed the amount that the Borrower or such Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the case may be, in respect of such year if the Borrower or such Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group;
(g) [Reserved];
(h) to the extent constituting a Restricted Payment, the Borrower and the Restricted Subsidiaries may enter into the transactions expressly permitted by Section 6.04 or Section 6.05 (other than Section 6.05(e));
(i) the proceeds of which shall be used by Holdings to make (or to make a Restricted Payment to any Parent Entity to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any Parent Entity;
(j) payments made or expected to be made by the Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management or consultants of the Borrower (or any Parent Entity) or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of the foregoing) and any repurchases of Equity Interest in consideration of such payments including demand repurchases in connection with the exercise of stock options;
(k) the Borrower may make Restricted Payments to Holdings so long as (i) no Default or Event of Default has occurred and is continuing and (ii) the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Restricted Payment; and
(l) redemptions, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00repurchases, Restricted Payments may be made in an aggregate amount equal to a portion retirements or other acquisitions of Equity Interests of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make paymentsin exchange for, in cash, in lieu or out of the issuance proceeds of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
substantially concurrent sale (h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed other than to the Borrower or a Subsidiary Restricted Subsidiary) of, Equity Interests of the Borrower or (2) the merger, consolidation or amalgamation any Parent Entity (to the extent permitted in Section 6.05) the proceeds of such sale are contributed to the capital of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, Borrower) (in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on than any Equity Interests issued or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount sold that are not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(mQualified Capital Stock) (such clause, the “Restricted Payments Incurrence ClauseRefunding Capital Stock”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
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Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests of the Borrowers (other than dividends and distributions on such Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributionsBorrowers) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any Equity Interests of the Borrower’s Equity Interests Borrowers or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, a “Restricted PaymentsPayment”); provided, however, that:
(a) Restricted Payments the Lead Borrower may be made to make the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests)Closing Date Dividend;
(b) the Borrowers may make Restricted Payments may as shall be made in respect of necessary to allow Holdings (or any Parent Entity) (i) to pay operating expenses in the ordinary course of business and other corporate overhead, legal, accounting and other professional fees and expenses (including, without limitation, those owing to third parties plus any customary indemnification claims made by directors, officers, employees, members of management and consultants of Holdings (or any Parent Entity) attributable to the ownership or operations of Holdings, the Borrowers and the Restricted Subsidiaries), (ii) to pay fees and expenses related to any public offering debt or private placement of Equity Interests equity offering, investment or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummatedsuccessful), (iii) to pay franchise and or similar taxes and other fees and expenses required in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerLead Borrower and in order to permit Holdings to make payments (other than cash interest payments) which would otherwise be permitted to be paid by the Borrowers under Section 6.07(b), (iv) payments to finance any Investment permitted by to be made under Section 6.07(b6.04; provided, that (A) such Restricted Payments under this clause (other than Section 6.07(b)(vii))iv) shall be made substantially concurrently with the closing of such Investment and (B) the Parent Entity shall, immediately following the closing thereof cause all property acquired to be contributed to a Borrower or one (1) of the Restricted Subsidiaries or the merger of the person formed or acquired into the Borrowers or one (1) of the Restricted Subsidiaries in order to consummate such Investment; and (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) pay customary salary, bonus and other benefits payable to, and indemnities provided on behalf ofto directors, officers, directors and employees employees, members of Holdings management or any Parent Entity, in each case in order to permit consultants of Holdings or any Parent Entity to make the extent such payments; providedsalary, that in the case of subclauses (i) bonuses and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) other benefits are directly attributable and (iii) that are allocable reasonably allocated to the operations of a Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership)Subsidiaries;
(c) the Borrowers may make Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem (i) the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultantsofficers, officers employees, members of management or employees consultants of any Parent Entity, Holdings, the Lead Borrower or any of its Subsidiaries (or the Subsidiaries estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing) or by any Plan or any shareholders’ agreement then in effect upon such person’s deathPlan, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions Restricted Payments under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15.0 million (plus the sum of the amount of (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity a Borrower during such calendar fiscal year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultantsofficers, officers employees, members of management or employees consultants of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided(or the estate, that such proceeds are not included in heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any determination of the Cumulative Creditforegoing), or any Plan and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar fiscal year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any the next subsequent calendar year; fiscal year and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase (ii) fractional shares of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06Interests;
(d) any person may make non-cash repurchases of Equity Interests in Holdings (or any Parent Entity), any Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or similar Equity Interests if such repurchased Equity Interests represent a portion of the exercise price of such optionsoptions or taxes to be paid in connection therewith;
(e) [Reserved];
(f) any Borrower and any Subsidiary of any Borrower may make Restricted Payments to any direct or indirect member of an affiliated group of corporations that files a consolidated U.S. federal tax return with the Borrowers (the “Tax Distributions”), provided that, such Tax Distributions shall not exceed the amount that the Borrowers or such Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the case may be, in respect of such year if the Borrowers or such Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group;
(g) [Reserved];
(h) to the extent constituting a Restricted Payment, the Borrowers and the Restricted Subsidiaries may enter into the transactions expressly permitted by Section 6.04, Section 6.05 (other than Section 6.05(e)) or Section 6.07;
(i) the proceeds of which shall be used by Holdings to make (or to make a Restricted Payment to any Parent Equity to enable it to make) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Holdings or any Parent Equity;
(j) payments made or expected to be made by any Borrower or any of its Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management or consultants of any Borrower (or any Parent Entity) or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of the foregoing) and any repurchases of Equity Interest in consideration of such payments including demand repurchases in connection with the exercise of stock options;
(k) the Borrowers may make Restricted Payments to Holdings so long as (i) no Default or Event of Default has occurred and is continuing and (ii) the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(fl) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to payredemptions, repurchases, retirements or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange other acquisitions of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding Borrower or any Parent Entity to pay, dividends and make distributions toin exchange for, or repurchase out of the proceeds of the substantially concurrent sale (other than to a Borrower or redeem shares froma Restricted Subsidiary) of, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that Equity Interests of any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings Borrower or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05the proceeds of such sale are contributed to the capital of a Borrower) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, (in each case, in accordance with the requirements of Section 5.10;
other than any Equity Interests issued or sold that are not Qualified Capital Stock) (j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G“Refunding Capital Stock”), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment distributions or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00payments of Receivables Fees; provided, that no Event of Default shall have occurred and be continuing;and
(n) Restricted Payments constituting the Special Lead Borrower may make the Amendment No. 1 Effectiveness Date Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).by
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Relevant Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Relevant Subsidiary of the Borrower (or, in the case of non-Relevant Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Relevant Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower and assets incidental or any of its Relevant Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower or, to the extent such equity ownership or (y) Equity Interests were issued as compensation for services rendered on behalf of the Loan Parties, any employee of any Parent Entity owns directly Company, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or indirectly no material assets other than Equity Interests of Holdings partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Relevant Subsidiaries may declare and pay dividends to the Borrower or any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Relevant Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directorsfor such purposes, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year U.S. $48,000,000 5.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(d) provided no Default or Event of Default then exists or would result therefrom, the Borrower may declare and pay dividends or make other distributions from the proceeds of any issuance of Equity Interests permitted to be made under this Agreement; and
(e) so long as provided (i) no Default or Event of Default has occurred and is continuing then exists or would result therefrom and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio Borrower shall be in compliance (on a Pro Forma Basis is not greater than 3.65 and after giving effect to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion the making of such distribution) with the provisions of Section 6.10 and Section 6.11 as of the Cumulative Credit on end of the date of such election that immediately preceding fiscal quarter, the Borrower elects may declare or make a distribution on or with respect to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of the Borrower during any such person;
(h) Restricted Payments may be made on or after fiscal quarter in accordance with the Ninth Incremental Assumption and Amendment LLC Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for Available Cash (as such term is defined in the period from LLC Agreement as of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Closing Date) as of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing end of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)fiscal quarter.
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of collectively, the foregoing, “Restricted PaymentsDistributions”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Company may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower Company or to any Wholly Owned Subsidiary of the Borrower Company (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary that is a direct or indirect parent shareholder of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Company or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Company may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the BorrowerCompany, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable statethe relevant jurisdiction of Holdings (or any Parent Entity) attributable to Holdings, local the Company or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, Subsidiaries and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower Company and its Subsidiaries (which shall be 100% at any time thatfor so long as Holdings or such Parent Entity, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Company, Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) Restricted Payments the Company may be made declare and pay dividends or make other distributions to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Company or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 20 million (plus (x) the amount of net proceeds contributed to the Borrower Company that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity of Holdings to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) the Company may pay dividends to Holdings; provided, that no Default or Event of Default has occurred and is continuing and (ii) or would result therefrom and, after giving effect to such Restricted Paymentthereto, that the Net Total Leverage Ratio on a Company and its Subsidiaries shall be in Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so appliedCompliance;
(f) Restricted Payments the Company may be made in connection with pay dividends on the consummation of Closing Date to consummate the ADT Transactions;
(g) Restricted Payments the Company may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments after a Qualified IPO, the Company may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Company from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Company or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Company;
(i) Restricted Payments the Company may be made make distributions to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment distribution shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Company or a Subsidiary or (2) the merger, consolidation or amalgamation merger (to the extent permitted in Section 6.05) of the person Person formed or acquired into the Borrower Company or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;; and
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), the Company may be made on or pay dividends after the Ninth Incremental Assumption Closing Date to permit Holdings to make payments required under the Acquisition Agreement (including Sections 2.9 and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion 5.4 thereof).
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Plastics Group Inc)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of any Borrower may make Restricted Payments may be made to the such Borrower or to any Wholly Owned Subsidiary of the such Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the such Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the such Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not such Borrower or a Subsidiary is permitted under Section 7.04);
(b) each Borrower may make Restricted Payments may be made to its applicable Holdco in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entitysuch Holdco, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity such Holdco whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) such Holdco’s existence and its (or any Parent Entitysuch Holdco’s indirect) ownership of the such Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as such Holdco owns no assets other than the Equity Interests in such Borrower) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local the relevant jurisdiction of such Holdco attributable to such Borrower or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of such Holdco incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosing Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entitysuch Holdco, in each case in order to permit Holdings or any Parent Entity such Holdco to make such payments; providedprovided that, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the such Borrower and its Subsidiaries (which shall be 100% at any time thatfor so long as such Holdco, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to in such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(ed) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, each Borrower may make Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings applicable Holdco or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, provided that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the such Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person Person formed or acquired into the such Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(je) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be Payments made on or within 60 days after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of declaration thereof, if at the date of declaration such Restricted Payment payment would have been permitted under (it being understood that and was counted against any applicable basket under) this Agreement; and
(f) each Borrower may make any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(jPayment; provided that (x) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
continuing or would result therefrom and (ky) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default Payment Conditions shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”equity); provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions (directly or indirectly) (i) to any Parent Entity in respect of (iA) overhead, legal, accounting accounting, consulting and other professional fees and expenses of Holdings or any Parent Entity, (iiB) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iiiC) franchise and or similar taxes Taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s direct or indirect) ownership of the Borrower, (ivD) payments permitted by Section 6.07(b) (except to the extent expressly subject to this Section 6.06), and (E) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of any Parent Entity, in each case in order to permit any Parent Entity to make such payments; provided that in the case of clauses (A) and (B), the amount of such dividends and distributions shall not exceed the portion of any amounts referred to in such clauses (A) and (B) that are allocable to the Borrower and its Subsidiaries (which shall be 100% for so long as such Parent Entity, as the case may be, beneficially owns no assets other than Section 6.07(b)(viithe Equity Interests in the Borrower)), ; (vii) in with respect of to any taxable period for which the Borrower and/or any of its Subsidiaries are members of is or has been a consolidated, combined, affiliated, unitary partnership or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes purposes, to any person that is wholly owned (directly or indirectly) by held Equity Interests of the Borrower during such taxable period (a) to the extent such tax distributions are permitted under (I) the Amended and Restated United States Tax Agreement for NCL Corporation Ltd., dated January 24, 2013 or the Amended and Restated Profits Sharing Agreement for NCL Corporation Ltd., dated January 22, 2013, each as in effect on the Closing Date, (collectively, the “Tax Agreements”) or (II) any amended version of the Tax Agreements to the extent such amendments are not materially adverse to the Lenders (collectively, the “Amended Tax Agreements”) and (b) to the extent not otherwise permitted under clause (a), tax distributions in respect of audit adjustments resulting from audits of the Borrower and/or its Subsidiaries commencing after the Closing Date, determined in a C corporation manner consistent with and subject to the limitations set forth in the Tax Agreements and the Amended Tax Agreements; and (iii) with respect to any taxable period for U.S. federal and/or applicable state which the Borrower and any Parent Entity files an affiliated, consolidated, combined or local income unitary tax purposesreturn in any relevant jurisdiction, distributions to any direct or indirect parent of the Borrower such Parent Entity in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes Taxes in such jurisdiction that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and taxpayers in such jurisdiction (vi) customary salary, bonus and other benefits less any portion of such amounts directly payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such paymentsby the Borrower and/or its Subsidiaries); provided, that distributions in the case respect of subclauses (i) and (iii), the amount of such Restricted Payments an Unrestricted Subsidiary shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Borrower and or any of its Restricted Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to for such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);purpose.
(c) Restricted Payments the Borrower may be made to Holdings, declare and pay dividends or make other distributions (directly or indirectly) the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year the greater of $48,000,000 [*] and [*]% of Consolidated Total Assets (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as the Borrower may pay dividends (idirectly or indirectly) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its Equity Holders in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower elects to apply to this Section 6.06(e(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Borrower shall be in Pro Forma Compliance;
(f) Restricted Payments the Borrower may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;; and
(hg) Restricted Payments the Borrower may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for [*]% per annum of the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made net proceeds received by the Borrower from any public offering of any direct or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with indirect parent of the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired Borrower (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on before or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofClosing Date).
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests Holdings Common Stock payable solely by the issuance of additional Equity Interests (other than Disqualified shares of Holdings Common Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Subsidiary may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the U.S. Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the U.S. Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the U.S. Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments the U.S. Borrower may be made declare and pay dividends or make other distributions to Intermediate Holdings (which may, in turn, declare and pay dividends or make other distributions to Holdings, in an amount equal to the dividends and distributions received by Intermediate Holdings) in respect of (i) overhead, tax liabilities of Holdings and Intermediate Holdings, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the U.S. Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its SubsidiariesIntermediate Holdings, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (ipayments permitted by Sections 6.07(b) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(c) Restricted Payments Holdings may be made purchase or redeem (and the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used so to purchase or redeem the redeem) Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the U.S. Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 7,500,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent EntityIntermediate Holdings, the U.S. Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash this Section 6.06 shall not prohibit noncash repurchases of Equity Interests that are deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) Holdings may purchase or redeem, or declare and pay dividends or make other distributions in respect of (and the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings so long as to purchase or redeem, or pay such dividends or make such other distributions in respect of) Equity Interests of Holdings (i) no Default including the purchase or Event redemption of Default has occurred and is continuing and (ii) after giving effect related stock appreciation rights or similar securities with respect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made Equity Interests) in an aggregate amount equal not to a portion of exceed (A) (x) $25,000,000 minus (y) the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the aggregate amount of Cumulative Credit immediately prior to such election purchases, redemptions, dividends and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be distributions made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Restatement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that clause (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater Cumulative Net Income Amount at the time of $415,000,000 such purchase, redemption, dividend or distribution, provided that, in the case of both clauses (A) and 0.15 times (B) above, (1) the EBITDA calculated on a Pro Forma Basis for Senior Secured Leverage Ratio as of the Test Period last day of the most recently ended immediately fiscal quarter prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date purchase, redemption, dividend or distribution for which financial statements have been delivered pursuant to this Section 6.06(j5.04 is less than 1.5 to 1.0 and (2) shall not use capacity hereunder); provided, that no Default or Event of Default shall have occurred and be continuing;continuing or would result therefrom; and
(kf) [reserved];
Holdings may purchase or redeem (land the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings so to purchase or redeem) Restricted Payments may be made Equity Interests of Holdings (including the purchase or redemption of related stock appreciation rights or similar securities with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect respect to such payment Equity Interests) in an aggregate amount not to exceed (A) (x) $25,000,000 minus (y) the aggregate amount of purchases and redemptions made on or distribution on a Pro Forma Basisafter the Restatement Effective Date pursuant to this clause (A) and (B) in an aggregate amount not to exceed the Cumulative Net Income Amount at the time of such purchase or redemption, provided that, in the Net Total case of both clauses (A) and (B) above, (1) the Senior Secured Leverage Ratio as of the last day of the most recently ended fiscal quarter prior to the date of such purchase or redemption for which financial statements have been delivered pursuant to Section 5.04 is not greater less than 2.90 1.5 to 1.00; provided, that 1.0 and (2) no Default or Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on continuing or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000would result therefrom. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenantcontrary herein, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (Bi) in the event that a Restricted Payment (or of any portion thereof) meets the criteria of one or more merger of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the U.S. Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled into Intermediate Holdings pursuant to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”6.05(b)(i), any dividend or distribution permitted to be made under this Section 6.08 to the determination of the amount of such Restricted Payment (or any portion thereof) that U.S. Borrower may be made to Intermediate Holdings, (ii) in the event of any merger of Intermediate Holdings into Holdings pursuant to the Restricted Payments Incurrence Clause shall Section 6.05(b)(ii), any dividend or distribution permitted to be made without giving pro forma effect under this Section 6.08 to Intermediate Holdings (including pursuant to clause (i) of this paragraph) may be made to Holdings and (iii) in the event of any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any merger of the above clauses other than surviving entity of any merger of the Restricted Payments Incurrence Clause or U.S. Borrower and Intermediate Holdings with Holdings pursuant to Section 6.05(b)(ii), any dividend permitted to be made under this Section 6.08 to the incurrence of Indebtedness U.S. Borrower may be made to finance any such Restricted Payment (or any portion thereof)Holdings.
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”equity); provided, however, that:
(a) Restricted Payments any Subsidiary of the Company may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower Company or to any Wholly Owned Subsidiary of the Borrower Company (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Company or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Company may be made declare and pay dividends or make other distributions (directly or indirectly) (i) to any Parent Entity in respect of (iA) overhead, legal, accounting accounting, consulting and other professional fees and expenses of Holdings or any Parent Entity, (iiB) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iiiC) franchise and or similar taxes Taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s direct or indirect) ownership of the BorrowerCompany, (ivD) payments permitted by Section 6.07(b) (other than except to the extent expressly subject to this Section 6.07(b)(vii6.06)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (viE) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses clauses (iA) and (iiiB), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (iA) and (iiiB) that are allocable to the Borrower Company and its Subsidiaries (which shall be 100% at any time thatfor so long as such Parent Entity, as the case may be, (x) Holdings beneficially owns no material assets other than the Equity Interests in the Company); (ii) with respect to any taxable period for which the Company is or has been a partnership or disregarded entity for U.S. federal income tax purposes, to any person that (directly or indirectly) held Equity Interests of the Borrower Company during such taxable period (a) to the extent such tax distributions are permitted under (I) the Amended and assets incidental to such equity ownership Restated United States Tax Agreement for NCL Corporation Ltd., dated January 24, 2013 or the Amended and Restated Profits Sharing Agreement for NCL Corporation Ltd., dated January 22, 2013, each as in effect on the Closing Date, (collectively, the “Tax Agreements”) or (yII) any amended version of the Tax Agreements to the extent such amendments are not materially adverse to the Lenders (collectively, the “Amended Tax Agreements”) and (b) to the extent not otherwise permitted under clause (a), tax distributions in respect of audit adjustments resulting from audits of the Company and/or its Subsidiaries commencing after the Closing Date, determined in a manner consistent with and subject to the limitations set forth in the Tax Agreements and the Amended Tax Agreements; and (iii) with respect to any taxable period for which the Company and any Parent Entity owns directly files an affiliated, consolidated, combined or indirectly no material assets other than Equity Interests of Holdings and unitary tax return in any other relevant jurisdiction, distributions to such Parent Entity and assets incidental in amount not to exceed the amount of any Taxes in such equity ownershipjurisdiction that the Company and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Company and/or its Subsidiaries, as applicable, been stand-alone taxpayers in such jurisdiction (less any portion of such amounts directly payable by the Company and/or its Subsidiaries);; provided, that distributions in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Company or any of its Restricted Subsidiaries for such purpose.
(c) Restricted Payments the Company may be made to Holdings, declare and pay dividends or make other distributions (directly or indirectly) the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Company or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year the greater of $48,000,000 [*] and [*]% of Consolidated Total Assets (plus (x) the amount of net proceeds contributed to the Borrower Company that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash non‑cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as the Company may pay dividends (idirectly or indirectly) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its equity holders in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower Company elects to apply to this Section 6.06(e(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Company shall be in Pro Forma Compliance;
(f) Restricted Payments the Company may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hg) Restricted Payments the Company may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not no greater than [*]% per annum of Market Capitalization;
(h) the Company may declare and pay dividends or make other distributions (directly or indirectly) to exceed $100,000,000 for its equity holders if after giving effect to such dividend or distribution, the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date Total Leverage Ratio is equal to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior or less than 3.30 to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);1.00; and
(i) Restricted Payments the Company may be made to Holdings declare and pay dividends or any Parent Entity to finance any Investment that if made by the Borrower make other distributions (directly or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interestsindirectly) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date its equity holders in an aggregate amount not to exceed the greater of $415,000,000 [*] and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date [*]% of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Consolidated Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Assets.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Dividends and Distributions. Declare or pay Pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (in each case, solely to a holder of Equity Interests in such person’s capacity as a holder of such Equity Interests) (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s or a Subsidiary’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);; 183
(b) Restricted Payments may be made in respect of (i) general corporate operating and overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, in each case, to the extent attributable to the ownership or operations of the Borrower and its Subsidiaries, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes Taxes, and other fees and expenses expenses, in connection with the maintenance of its Holdings’ (or any Parent Entity’s) existence and its Holdings’ (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii))) or the last paragraph of Section 6.07, (v) in with respect of to any taxable period year for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower Parent Entity is the common parent, or for which the Borrower is a partnership or disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a Parent Entity that is a C corporation (a “Corporate Parent”) for U.S. federal and/or applicable state state, local or local income foreign tax purposes, distributions to the Tax liability of any direct such Parent Entity or indirect parent of the Borrower Corporate Parent, as applicable, in an aggregate amount not to exceed the amount of any such U.S. federal, state, local or and/or foreign taxes income Taxes that the Borrower and/or its applicable Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its applicable Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupgroup for all applicable taxable years (without duplication, for the avoidance of doubt, of the amount of such Taxes actually directly paid by the Borrower and/or any of its Subsidiaries to the relevant taxing authority, if any); provided, that, the permitted payment pursuant to this clause (v) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar income Taxes; and (vi) customary salary, bonus bonus, severance and other benefits payable to, and indemnities provided on behalf of, officers, directors directors, employees and employees consultants of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdingspurchase, the proceeds of which are used to purchase retire or redeem the Equity Interests of the Borrower, Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then any future, present or former directors, consultants, officers or employees (or their respective Immediate Family Members) of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries Subsidiaries, including any repurchase, retirement or by redemption pursuant to any Plan or any shareholders’ agreement or other agreement or arrangement then in effect or upon such person’s death, disability, retirement or termination of employment or under the terms to cover such person’s payment of any such Plan or any other agreement under which such shares of stock or related rights were issuedwithholding taxes in connection therewith; provided, that the aggregate amount of such purchases purchases, retirements or redemptions under this clause (c) shall not exceed in any fiscal calendar year $48,000,000 30,000,000 (plus an amount equal to (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangementsthat occur after the Closing Date; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received by the Borrower or any Subsidiary during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or the Subsidiaries any Subsidiary in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any calendar year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from any present or former members of management management, directors, officers or consultants (or their respective Immediate Family Members) of Holdings, any Parent Entity, the Borrower or its Subsidiaries any Subsidiary in connection with a repurchase of Equity Interests of the Borrower, Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;; 184
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default shall have occurred and be continuing;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including payments and distributions to dissenting stockholders or stockholders exercising appraisal rights pursuant to applicable law or as a result of the settlement of any stockholder claims or action (whether actual, contingent or potential);
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date of up to pay, or to allow Holding or $150,000,000 in any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)calendar year;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Permitted Business Acquisition, New Project or other acquisition or Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Permitted Business Acquisition, New Project or other acquisition or Investment and (B) Holdings or such parent Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition Acquisition, New Project or other acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 133,000,000 and 0.15 0.25 times the Adjusted EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment Payment; provided that no Event of Default shall have occurred and be continuing; 185
(it being understood that any Restricted Payments made prior k) payments of dividends on (and pursuant to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this terms of) Disqualified Stock of the Borrower issued in compliance with Section 6.06(j) shall not use capacity hereunder)6.01; provided, provided that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made (i) in an aggregate amount not to exceed the aggregate amount of Excluded Contributions or (ii) without duplication of clause (i), in an amount not to exceed the net proceeds from an Asset Sale or other Disposition in respect of property or assets acquired after the Closing Date, to the extent the acquisition of such property or assets was financed with Excluded Contributions;
(m) other any Restricted Payments Payment may be made, so long asas no Event of Default has occurred and is continuing or would result therefrom and, immediately after giving effect to such payment or distribution on a Pro Forma BasisRestricted Payment, the Net Total Leverage Ratio is on a Pro Forma Basis would not greater than 2.90 exceed 2.50 to 1.00; provided, that no Event of Default shall have occurred and be continuing;and
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments any consideration, payment, dividend, distribution or other transfer in respect of Securitization Fees or in connection with a Permitted Securitization Financing or a receivables financing may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000made. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such Restricted Payment or redemption, purchase, defeasance or other payment would have complied with the provisions of this Agreement. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the fair market value thereof, which shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Restricted Payment or as of the date of the definitive agreement with respect to such Restricted Payment. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the BorrowerParent’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower Parent or any Wholly Owned Subsidiary of the Borrower (or, in the case of provided that Restricted Payments made by a non-Wholly Owned Subsidiaries, Subsidiary to the Borrower Parent or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary must be made on a pro rata basis (or more favorable basis from the perspective of the Borrower Parent or such Subsidiary) based on their relative its ownership interestsinterests in such non-Wholly Owned Subsidiary);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any by the Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any the Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any the Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (cb) shall not exceed in any fiscal year $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower Parent that were (x) received by Holdings or any the Parent Entity during such calendar year from sales of Equity Interests of Holdings or any the Parent Entity to directors, consultants, officers or employees of Holdings, any the Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, Available Amount and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year); and provided, further, that cancellation of Indebtedness owing to the Borrower Parent or any Subsidiary from members of management of Holdings, any the Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any the Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise or settlement of stock options or other Equity Interests if such Equity Interests represent a portion of the exercise price of or withholding obligation with respect to such optionsoptions or other Equity Interests;
(ed) so long as as, at the time any such Restricted Payment is made and immediately after giving effect thereto (ix) no Default or Event of Default has shall have occurred and is continuing and (iiy) after giving effect to such Restricted Payment, the Total Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 4.50 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit Available Amount on the date of such election that the Borrower Parent elects to apply to this Section 6.06(e6.06(d), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”Available Amount) be set forth in a written notice of a Responsible Officer of the Lux Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit Available Amount immediately prior to such election and the amount thereof elected to be so applied;
(fe) Restricted Payments may be made in connection with the consummation of the ADT Transactions, including the payment of the appraised value of any Dissenting Shares (as defined in the Merger Agreement) in accordance with the Merger Agreement;
(gf) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hg) other Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 250,000,000 and 0.15 times 6.25% of Consolidated Total Assets when made; and
(h) additional Restricted Payments, so long as, at the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of time any such Restricted Payment is made and immediately after giving effect thereto, (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(jx) shall not use capacity hereunder); provided, that no Default or Event of Default shall have occurred and be continuing;
is continuing and (ky) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution the Total Net Leverage Ratio on a Pro Forma Basis, the Net Total Leverage Ratio Basis is not greater than 2.90 3.50 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (Mallinckrodt PLC)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments any Subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings in respect of (i) overhead, tax liabilities of the Borrower and its Subsidiaries in accordance with the Tax Sharing Agreement, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) Borrower and in order to permit Holdings to make payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(c) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 10 million (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as (i) no Default the Borrower may pay dividends to Holdings to permit Holdings to pay dividends and make distributions to, or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Paymentrepurchase or redeem shares from, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its equity holders in an aggregate amount equal to a portion (i) $40 million (minus any amounts utilized pursuant to Section 6.09(b)(i)(C)(1)) plus (ii) the portion, if any, of the Cumulative Credit Available Investment Basket Amount on the date of such election that the Borrower elects to apply to this Section 6.06(e6.06(e)(ii); provided that, which such election shall (unless such Restricted Payment is made pursuant with respect to clause (a) ii), at the time of such dividend or distribution and after giving effect thereto and to any borrowing in connection therewith, the Senior Secured Leverage Ratio of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption does not exceed 1.75:1.00 and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Default or Event of Default shall have has occurred and be is continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (PQ Systems INC)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that, without duplication:
(a) Restricted Payments any subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary subsidiary that is a direct or indirect parent of such Subsidiary subsidiary and to each other owner of Equity Interests of such Subsidiary subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiarysubsidiary) based on their relative ownership interests);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to the Parents in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iiiii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) attributable to their ownership of the Borrower, ;
(ivc) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary may purchase or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the redeem Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s 's death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 3.5 million (plus (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default the Borrower may declare and pay dividends or Event make other distributions or reimbursements to DIRECTV or any of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its Affiliates in an aggregate amount equal to a portion the cash and cash equivalents that collateralize the Existing Letters of Credit as the Existing Letters of Credit are terminated or replaced as contemplated by the Transaction Agreement;
(f) the Borrower may pay dividends and make distributions to, or to repurchase or redeem shares from, its equity holders in an aggregate amount equal to the sum of (i) $2.0 million, plus (ii) the portion, if any, of the Cumulative Credit Available Investment Basket Amount on the date of such election that the Borrower elects to apply pursuant to this Section 6.06(e6.06(f); provided that the amount in this clause (ii) shall only be available so long as (x) no Default or Event of Default has occurred and is continiuing and (y) either (1) SPACEWAY has entered commercial operation at such time or (2) the Borrower has delivered written notice to the Administrative Agent that the construction of SPACEWAY and related assets has been irrevocably abandoned;
(g) for so long as the Borrower is a Flow Through Entity, which such election shall payment of dividends or other distributions to any member of the Borrower in an amount, with respect to any period after the Closing Date, (unless such Restricted Payment i) not to exceed the tax amount that the Borrower is made required to distribute to its members pursuant to clause (a) Section 6.3.4 of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer Limited Liability Agreement of the BorrowerBorrower as in effect on the Closing Date with respect to the Borrower for such period or (ii) in the event that Section 6.3.4 of the Limited Liability Agreement of the Borrower is no longer operable, which notice shall set forth calculations in reasonable detail equal to (A) the product of the amount of Cumulative Credit immediately prior aggregate net taxable income allocated by the Borrower to such election member of the Borrower for such period multiplied by the Presumed Tax Rate for such period less (B) the amount of dividends or other distributions, if any, received by such member from the Borrower during such period; and (b) if the Borrower is not a Flow Through Entity, payment of dividends or other distributions to any direct or indirect parent of the Borrower that files a consolidated U.S. federal tax return that includes the Borrower and its subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group; and
(h) any payment used to fund the Transactions and the amount thereof elected to be so applied;
(f) Restricted Payments may be fees and expenses related thereto or made in connection with the consummation of the ADT Transactions;
Transactions (g) Restricted Payments may be including payments made pursuant to payor as contemplated by the Transaction Documents, whether payable on the Closing Date or thereafter), or to allow Holdings or owed by any Parent Entity to make payments, in cash, in lieu parent of the issuance of fractional sharesBorrower, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted Subsidiaries of the Borrower to be made Affiliates pursuant to Section 6.04; providedthe Transaction Documents, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (in each case to the extent permitted in by Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)6.07.
Appears in 1 contract
Dividends and Distributions. Declare If, on or pay any dividend or make any other distribution (by reduction after the date of capital or otherwise)this Offer to Purchase, whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of Company should (i) overheadsplit, legal, accounting and other professional fees and expenses of Holdings combine or any Parent Entityotherwise change the Shares or its capitalization, (ii) fees and expenses related to issue or sell any public offering or private placement of Equity Interests or debt additional securities of Holdings the Company or any Parent Entity whether otherwise cause an increase in the number of outstanding securities of the Company or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (acquire currently outstanding Shares or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of otherwise cause a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that reduction in the case number of subclauses (i) outstanding Shares, then, without prejudice to the Purchaser's rights under Sections 1 and (iii)14, the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower mayPurchaser, in its sole discretion, dividemay make such adjustments as it deems appropriate in the purchase price and other terms of the Offer, classify or reclassifyincluding, or later dividewithout limitation, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment securities offered to be purchased. If, on or after the date of this Offer to Purchase, the Company should declare or pay any dividend on the Shares or make any distribution (including, without limitation, the issuance of additional Shares pursuant to a stock dividend or stock split, the issuance of other securities or the issuance of rights for the purchase of any portion thereofsecurities) in one with respect to the Shares that is payable or distributable to shareholders of record on a date prior to the transfer to the name of the categories Purchaser or its nominee or transferee on the Company's stock transfer records of permitted Restricted Payments the Shares purchased pursuant to the Offer, then, without prejudice to the Purchaser's rights under Sections 1 and 14, (or any portion thereofi) described in the above clauses. In Per Share Amount payable by the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, Purchaser pursuant to the “Restricted Payments Incurrence Clause”), the determination of Offer will be reduced by the amount of any such Restricted Payment cash dividend or cash distribution, and (ii) any such non-cash dividend, distribution or any portion thereof) that may right to be made pursuant received by the tendering shareholders will be received and held by such tendering shareholders for the account of the Purchaser and will be required to be promptly remitted and transferred by each such tendering shareholder to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any Depositary for the account of the above clauses other than Purchaser, accompanied by appropriate documentation of transfer. Pending such remittance and subject to applicable law, the Restricted Payments Incurrence Clause or the incurrence Purchaser will be entitled to all rights and privileges as owner of Indebtedness to finance any such Restricted Payment (non-cash dividend, distribution or any portion right and may withhold the entire purchase price or deduct from the purchase price the amount of value thereof), as determined by the Purchaser in its sole discretion.
Appears in 1 contract
Samples: Offer to Purchase (Crane Co /De/)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make make, directly or indirectly, any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary subsidiary of the Borrower to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all any of the foregoingforegoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, “Restricted PaymentsDividends”); provided, however, that:
(a) Restricted Payments (i) any Subsidiary may be made to the Borrower declare and pay dividends to, or any Wholly Owned Subsidiary of the Borrower (ormake other distributions to, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests); and (ii) to the extent permitted by Section 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options options, warrants or other securities convertible or exchangeable for Equity Interests if such Equity Interests represent a portion of the exercise exercise, conversion or exchange price of such optionsthereof;
(ec) so long as (i) no Default or Event any person may make distributions to minority shareholders of Default has occurred and any subsidiary that is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal acquired pursuant to a portion of the Cumulative Credit on the date Permitted Business Acquisition pursuant to appraisal or dissenters’ rights with respect to shares of such election that subsidiary held by such shareholders; and
(d) the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) or any Subsidiary may make payments of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to paycash, or dividends, distributions or advances to allow Holdings or any Parent Entity such person to make payments, in payments of cash, in lieu of the issuance of fractional shares, shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person; provided, however, that the aggregate amount of such payments, dividends, distributions or advances payable under this clause (d) in cash shall not exceed, when taken together with the amounts under clause (g) below, the greater of $5,000,000 and 2.5% of Net Receivables Financing Profit as of the last day of the most recently ended Test Period; provided that the aggregate amount of such Dividends shall not exceed $25,000,000;
(e) any Loan Party or Subsidiary thereof may make payments and distributions in respect of the Transactions, to the extent constituting a Dividend;
(f) the Borrower may declare and pay Dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Stock);
(g) the Borrower may make Dividends pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries (including, without limitation, redemptions or repurchases of Equity Interests (i) deemed to occur upon exercise of options or warrants or similar rights by the delivery of Equity Interests in satisfaction of the exercise price such options or warrants or similar rights or (ii) in consideration of withholding or similar taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing)) provided, however, that the aggregate amount under this clause (g) shall not exceed, when taken together with the amounts under clause (d) above, the greater of $5,000,000 and 2.5% of Net Receivables Financing Profit as of the last day of the most recently ended Test Period; provided that the aggregate amount of such Dividends shall not exceed $25,000,000;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with may make additional Dividend payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein 2,500,000 so long as no Default or Event of Default has occurred and is continuing or would occur; and
(i) to the contraryextent constituting a Dividend or Distribution, any payments of cash and/or Equity Interests (other than Disqualified Stock) of the foregoing provisions Borrower to a holder of Section 6.06 will not prohibit the payment Closing Date Subordinated Convertible Note (or for the benefit of a holder of the Closing Date Subordinated Convertible Note) upon the conversion thereof in accordance with the terms thereof; provided that any Restricted Payment or the consummation payments in cash, either must be (x) from proceeds of any redemption, purchase, defeasance or other payment within 60 days issuances after the date Closing Date of declaration thereof or Equity Interests (other than Disqualified Stock and to the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need extent not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (Botherwise applied) in the event that a Restricted Payment Borrower or (or any portion thereofy) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will to be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made paid pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofSection 6.09(b)(i)(F)(ii).
Appears in 1 contract
Dividends and Distributions. Declare (i) declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions), or (ii) or directly or indirectly redeem, purchase, retire retire, obtain the surrender of or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, may make Restricted Payments to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);Loan Party; and
(b) the Borrower may make Restricted Payments may be made to Holdings (i) in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings (other than in respect of expenses of the type referred to in subclause (iv) below) or any Parent Entityas required to administer the Cases, (ii) fees and expenses related to any public offering or private placement in respect of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees fees, taxes and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iviii) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in with respect of to any taxable period for which tax year or portion thereof that the Borrower and/or any of its Subsidiaries are members of does not qualify as a consolidatedFlow Through Entity, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions may make Restricted Payments to any direct or indirect parent company of the Borrower that files a consolidated U.S. federal, state or local income tax return that includes the Borrower and the Subsidiaries, in each case in an amount not to exceed the amount that the Borrower and the Subsidiaries would have been required to pay in respect of federal, state or local income taxes (as the case may be) payable on such returns in respect of such year if the Borrower and the Subsidiaries paid such taxes directly as a stand-alone taxpayer (or stand-alone group) (and, if any Verso Entity files such tax return, Holdings may make Restricted Payments to such Verso Entity in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes Restricted Payments that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupbe permitted to make to Holdings pursuant to this subclause (iii)), and (viiv) in respect of customary salary, bonus and other benefits benefits, payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent EntityHoldings, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses clauses (i) and (iiiii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i) and (iiiii) that are allocable to the Borrower and its the Subsidiaries (which shall be 100% at any time that, for so long as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipBorrower);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, further, that the aggregate amount of such purchases or redemptions under all Restricted Payments made by the Borrower pursuant to this clause (cSection 6.06(b) shall not exceed in any fiscal year $48,000,000 (plus (x) 2.0 million during the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions term of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Verso Paper Holdings LLC)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any subsidiary of the Term Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Term Borrower or to any Wholly Owned Subsidiary of the Term Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Term Borrower or any Subsidiary subsidiary that is a direct or indirect parent of such Subsidiary subsidiary and to each other owner of Equity Interests of such Subsidiary subsidiary on a pro rata basis (or more favorable basis from the perspective of the Term Borrower or such Subsidiarysubsidiary) based on their relative ownership interests);
(b) Restricted Payments the Term Borrower may be made declare and pay dividends or make other distributions to Holdings (or if the direct parent of the Term Borrower is New US Holdco, to New US Holdco, which in turn will declare and pay as dividends or distributions such amounts to Holdings) (A) in respect of (i) overhead, tax liabilities of Holdings (including prior to the consummation of the Parent Merger, any Tax Distribution necessary to allow Holdings to make a Tax Distribution in accordance with Section 6.06(f)), legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Term Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (viB) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (ipayments permitted by Sections 6.07(b) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(c) Restricted Payments Holdings may be made purchase or redeem (and the Term Borrower may declare and pay dividends or make other distributions to Holdings, the proceeds of which are used so to purchase or redeem the redeem) Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Holdings or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s 's death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 (7.5 million plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Holdings or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year and (y) of any key-man life insurance policies recorded during such calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such optionsoptions shall be permitted;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments payment may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu the minority shareholders of the issuance Company of fractional shares, upon (x) the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
"guaranteed dividends" (hAusgleichzahlung) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior payable pursuant to the Ninth Incremental Assumption Domination Agreement and Amendment Agreement Effective Date pursuant to this Section 6.06(h(y) shall not use capacity hereunder);the "minimum dividend" payable in accordance with German Law for 2003; and
(i) Restricted Payments may be made with respect to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment tax year (or portion thereof) need not be permitted solely that Holdings qualifies as a Flow Through Entity, the distribution by reference Holdings to one category the holders of permitted Restricted Payments the Equity Interests of Holdings of an amount equal to the product of (A) the amount of aggregate net taxable income allocated by Holdings to the direct or any portion thereof) described in indirect holders of the above clauses but may be permitted in part under any combination thereof Equity Interests of Holdings for such period and (B) in the event that a Restricted Payment Presumed Tax Rate for such period and (ii) with respect to any tax year (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesthat Holdings does not qualify as a Flow Through Entity, the Borrower maypayment of dividends or other distributions to any direct or indirect holders of Equity Interests of Holdings in amounts required for such holder to pay federal, state or local income taxes (as the case may be) imposed directly on such holder to the extent such income taxes are attributable to the income of Holdings and its Subsidiaries; provided, however, that in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of each case the amount of such Restricted Payment payments in respect of any tax year does not exceed the amount that Holdings and its Subsidiaries would have been required to pay in respect of federal, state or local taxes (as the case may be) in respect of such year if Holdings and its Subsidiaries paid such taxes directly as a stand-alone taxpayer (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofstand-alone group).
Appears in 1 contract
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Subsidiary of the Domestic Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from or make other distributions to, the Domestic Borrower or to any Wholly Owned Subsidiary of the Domestic Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Domestic Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Domestic Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Domestic Borrower and its Subsidiaries (which shall be 100% at each Subsidiary may repurchase, redeem or otherwise acquire or retire for value any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Domestic Borrower or any Subsidiary held by any current or former officer, director, consultant or employee of the Domestic Borrower or any Subsidiary pursuant to any equity subscription agreement, stock option agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement or any Plan and assets incidental Subsidiaries may declare and pay dividends to such equity ownership the Domestic Borrower or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Subsidiary the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directorsfor such purposes, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 15.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (xi) received by Holdings or any Parent Entity the Domestic Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Domestic Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Domestic Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (yii) the amount of net proceeds of any key-man life insurance policies received recorded during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(d) [Reserved];
(e) so long as the Domestic Borrower may pay cash dividends and/or repurchase, redeem or otherwise acquire or retire for value any Equity Interests of the Domestic Borrower, provided that the aggregate amount of such dividends, repurchases or redemptions shall not exceed the sum of (i) no Default or Event of Default has occurred and is continuing $200.0 million and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall fifty percent (unless such Restricted Payment is made pursuant to clause (a50%) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer Net Income of the BorrowerDomestic Borrower for the period commencing January 1, 2010 and ending on the last day of the most recently ended fiscal quarter for which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior financial statements have been delivered pursuant to such election and the amount thereof elected to be so appliedSection 5.04(a) or (b);
(f) Restricted Payments the Domestic Borrower may be made in connection with the consummation make distributions to its members of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of management that hold Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders Domestic Borrower in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing respect of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date Interests in an aggregate amount not to exceed the greater of in any fiscal year, together with such amounts permitted under Section 6.06(e) for such fiscal year, $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend3.0 million; and
(og) Restricted Payments the Domestic Borrower may be made on repurchase, redeem or after otherwise acquire or retire for value any Equity Interests of the Ninth Incremental Assumption Domestic Borrower up to (i) $130.0 million in respect of a share repurchase program and Amendment Agreement Effective Date (ii) 5 million shares of the Domestic Borrower in an aggregate amount connection with the acquisition of the Target (provided that if the acquisition of the Target is not to exceed $600,000,000. Notwithstanding anything herein to the contraryconsummated, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment repurchases, redemptions, acquisitions or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving retirements for value of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made shares undertaken pursuant to the Restricted Payments Incurrence Clause this clause (ii) shall nevertheless be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofpermitted).
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) any Subsidiary of the Borrower may make Restricted Payments may be made to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-non Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Borrower or a Subsidiary is permitted under Section 7.04);
(b) the Borrower may make Restricted Payments may be made to Holdings in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests debt or debt equity securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise Taxes or similar Taxes and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) Holdings’ existence and its Holdings’ (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)7.07(b), (v) the portion (which shall be 100% for so long as Holdings or the applicable Parent Entity, as the case may be, owns no assets other than the Equity Interests in the Borrower, Holdings or another Parent Entity) of the tax liability to each relevant jurisdiction in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group affiliated returns for U.S. federal and/or applicable state, local the relevant jurisdiction of Holdings or foreign tax purposes of which a direct or indirect parent of any Parent Entity attributable to the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, (vi) tax liabilities of Holdings incurred as applicable, would have paid for such taxable period had a result of transactions occurring prior to the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate groupClosing Date, and (vivii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses clauses (i), (ii) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses clauses (i), (ii) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at for so long as Holdings or any time that, as the case may be, (x) Holdings Parent Entity owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership Borrower, Holdings or (y) any another Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipEntity);
(c) the Borrower may make Restricted Payments may be made to Holdings, Holdings the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of Holdings, any Parent Entity, Holdings, the Borrower or any of the its Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, year and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the its Subsidiaries in connection with the ADT Transactions Transaction that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, further that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.067.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such optionsoptions or warrants;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Borrower may make Restricted Payments may be made to Holdings in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower elects to apply to this Section 6.06(e7.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that (i) no Default or Event of Default has occurred and is continuing or would result therefrom (ii) and, on a Pro Forma Basis after giving effect thereto, that the Borrower and its Subsidiaries shall be in compliance with the Total Net Leverage Ratio Test;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions[Reserved];
(g) the Borrower may make Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) the Borrower may make Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for 6.0% per annum of the period net proceeds received by the Borrower (at any time, whether before or after the Closing Date) from any public offering of Equity Interests of the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with Borrower or any direct or indirect parent of the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Borrower;
(i) the Borrower may make Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.047.04; provided, that (Ai) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (Bii) such parent shall, immediately following the closing thereof, cause (1A) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2B) the merger, consolidation or amalgamation (to the extent permitted in Section 6.057.05) of the person Person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.106.10;
(j) other the Borrower may make Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on Payments to Holdings or after the Ninth Incremental Assumption and Amendment Agreement Effective Date any Parent Entity in an aggregate amount not necessary to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior fund payments to the date Fund and the Fund Affiliates of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption type and Amendment Agreement Effective Date in amounts otherwise permitted pursuant to this Section 6.06(jSections 7.07(b)(ix) shall not use capacity hereunderand (xiv); provided, that such payments are not made directly by the Borrower or any of its Subsidiaries;
(k) Restricted Payments made within 60 days after the date of declaration thereof, if at the date of declaration such payment would have been permitted under (and was counted against any applicable basket under) this Agreement;
(l) so long as no Event of Default shall have occurred or be continuing or would result therefrom, the Borrower may make Restricted Payments in an aggregate amount of $50,000,000;
(m) the Borrower may make additional Restricted Payments to Holdings or any Parent Entity; provided, that (A) at the time of such Restricted Payment and after giving effect thereto, no Event of Default shall have occurred and be continuing;
continuing or would result therefrom and (kB) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution Restricted Payment, the Borrower shall be in compliance on a Pro Forma Basis, Basis with the Total Net Total Leverage Ratio is not greater than 2.90 to 1.00Test; provided, that no Event of Default shall have occurred and be continuing;and
(n) the Borrower may make Restricted Payments constituting to Holdings the proceeds of which may be utilized by Holdings to pay the Special Dividend; and
(o) Restricted Payments may provided that the Special Dividend shall be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 declared no later than 45 days after the date of declaration thereof or Closing Date and if not declared on the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesClosing Date, the Borrower mayshall deliver to the Administrative Agent a bringdown solvency opinion to the solvency opinion delivered pursuant to Section 5.02(e)(ii), in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one as of the categories of permitted Restricted Payments (or any portion thereof) described in declaration date for the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Special Dividend.
Appears in 1 contract
Dividends and Distributions. Declare During the Covenant Relief Period, the Parent Entity will not declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified StockEquity Interests) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the BorrowerParent Entity’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified StockEquity Interests) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (orpurchase, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase retire or redeem the Equity Interests of Holdings or any the Parent Entity (including related stock appreciation rights or similar securities) held by then any future, present or former directors, consultants, officers or employees (or their respective affiliates or family members) of any the Parent Entity, Holdings, the Borrower Entity or any of the its Subsidiaries or by any Plan or any pursuant to a shareholders’ agreement then or other agreement or arrangement in effect as of the Second Restatement Effective Date or upon such person’s death, disability, retirement or termination of employment or under the terms engagement or to cover such person’s payment of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary withholding taxes in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06therewith;
(db) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(gc) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Samples: Restatement Agreement (Aptiv PLC)
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (including any repayment by a Subsidiary that is not a Settlement Party of any Indebtedness of a direct or indirect parent company that is a Settlement Party) (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Qualified Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the BorrowerParent’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Qualified Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower Parent or any Wholly Owned Subsidiary of the Borrower (or, in the case of provided that Restricted Payments made by a non-Wholly Owned Subsidiaries, Subsidiary to the Borrower Parent or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary must be made on a pro rata basis (or more favorable basis from the perspective of the Borrower Parent or such Subsidiary) based on their relative its ownership interestsinterests in such non-Wholly Owned Subsidiary);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any by the Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any the Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any the Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (cb) shall not exceed in any fiscal year of the Parent $48,000,000 15,000,000 (plus (x) the amount of net proceeds contributed to the Borrower Parent that were (x) received by Holdings or any the Parent Entity during such calendar year from sales of Qualified Equity Interests of Holdings or any the Parent Entity to directors, consultants, officers or employees of Holdings, any the Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, Available Amount and (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year); and provided, further, that cancellation of Indebtedness owing to the Borrower Parent or any Subsidiary from members of management of Holdings, any the Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any the Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(dc) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise or settlement of stock options or other Equity Interests if such Equity Interests represent a portion of the exercise price of or withholding obligation with respect to such optionsoptions or other Equity Interests;
(ed) so long as as, at the time any such Restricted Payment is made and immediately after giving effect thereto, (ix) no Default or Event of Default has shall have occurred and is continuing be continuing, (y) the aggregate amount of unpaid Opioid Deferred Cash Payments does not exceed $600,000,000 and (iiz) after giving effect to such Restricted Payment, the Total Net Total Leverage Ratio on a Pro Forma Basis is not greater less than 3.65 3.50 to 1.001.00 and taking into account any outstanding Investments made pursuant to Section 6.04(j)(Y) utilizing the Available Amount, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit Available Amount on the date of such election that the Borrower Parent elects to apply to this Section 6.06(e6.06(d), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrowera Primary Obligor, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit Available Amount immediately prior to such election and the amount thereof elected to be so applied;
(fe) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(gf) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(hg) other Restricted Payments may be made on so long as (x) at the time any such Restricted Payment is made and immediately after giving effect thereto, no Default or Event of Default shall have occurred and is continuing and (y) the aggregate amount of such Restricted Payments from and after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount does not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year 50,000,000;
(commencing with the fiscal year ending December 31, 2020h) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)[reserved;] and
(i) Restricted Payments may be made to Holdings or with any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) portion of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000Cumulative Parent Qualified Equity Proceeds Amount. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with Notwithstanding anything to the contrary set forth in this covenantSection 6.06, (A) a no Settlement Party shall make any Restricted Payment to any Subsidiary (or portion thereofother than another Settlement Party) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described Unrestricted Subsidiary in the above clauses but may be permitted form of Material Intellectual Property; provided that nothing in part under this sentence shall prohibit any combination thereof and non-exclusive (Bother than exclusive distribution or other similar within a specified jurisdiction) in the event that a Restricted Payment (license or any portion thereof) meets the criteria sublicense of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassifyMaterial Intellectual Property to, or later divideuse of Material Intellectual Property by, classify any Subsidiary or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Unrestricted Subsidiary.
Appears in 1 contract
Samples: Opioid Deferred Cash Payments Agreement (Mallinckrodt PLC)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests (other than Disqualified Stock) of the person Person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) shares of any class of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all each of the foregoing, a “Restricted PaymentsPayment”); provided, however, that:
(a) any Restricted Payments Subsidiary of the Borrower may be made to declare and pay dividends to, repurchase its Equity Interests from, or make other distributions to, the Borrower or any Wholly Owned Restricted Subsidiary of the Borrower (or, or in the case of non-Restricted Subsidiaries that are not Wholly Owned SubsidiariesSubsidiaries of the Borrower, to the Borrower or Borrower, any Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary and to each other owner of Equity Interests of such Subsidiary Restricted Subsidiary) on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Restricted Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and each of its Restricted Subsidiaries (which shall be 100% at may repurchase, redeem or otherwise acquire or retire to finance any time thatsuch repurchase, as the case may be, (x) Holdings owns no material assets redemption or other than the acquisition or retirement for value any Equity Interests of the Borrower or any of its Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the Borrower or any Subsidiary of the Borrower pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement or similar agreement, plan or arrangement or any Plan and assets incidental the Borrower and Restricted Subsidiaries may declare and pay dividends to such equity ownership the Borrower or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, Subsidiary of the Borrower the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon for such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issuedpurposes; provided, that the aggregate amount of such purchases or redemptions in cash under this clause paragraph (cb) shall not exceed in any fiscal year $48,000,000 U.S.$5.0 million (plus (x) the amount of net proceeds contributed to the Borrower that were (xi) received by Holdings or any Parent Entity the Borrower during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary of its Affiliates in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (yii) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to ;
(c) the Borrower may make Restricted Payments during any fiscal quarter in an aggregate amount not to exceed the Borrower’s Available Cash in respect of the immediately preceding fiscal quarter; provided that no Default or any Subsidiary from members Event of management Default shall then be continuing or occur as a result of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a such Restricted Payment for purposes of this Section 6.06Payment;
(d) any person may make non-cash repurchases noncash repurchases, redemptions or exchanges of Equity Interests deemed to occur upon exercise of stock options or exchange of exchangeable shares if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as [Reserved]; and
(if) provided no Default under Section 7.01(c) or Event of Default has occurred and is continuing and (ii) then exists or would result therefrom, repurchases, redemptions or exchanges of Equity Interests of directors, consultants, officers or employees of the Borrower or any of its Affiliates on or after giving effect any vesting date of such Equity Interest to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to satisfy all or a portion of the Cumulative Credit on the date of such election that the Borrower elects tax obligations corresponding to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or vested Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof).
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that:
(a) Restricted Payments may be made to the Borrower or any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments may be made in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering or private placement of Equity Interests or debt securities Indebtedness of Holdings or any Parent Entity whether or not consummated, (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or and any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of in the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of in Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers officers, employees or employees franchisees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause (c) shall not exceed in any fiscal year $48,000,000 15,000,000 (which shall increase to $30,000,000 subsequent to a Qualified IPO) (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers officers, employees or employees franchisees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made in an aggregate amount equal to a portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e), which such election shall (unless such Restricted Payment is made pursuant to clause (ab) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and after giving effect thereto and after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 4.75 to 1.00;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions[Reserved];
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) after a Qualified IPO, Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for per annum no greater than 6.0% of the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder)Market Capitalization;
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder)5,000,000; provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];any Restricted Payment may be made so long as no Default or Event of Default has occurred and is continuing or would result therefrom and after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 3.00 to 1.00; and
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrarycontrary (but subject to the immediately succeeding paragraph), the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenantNotwithstanding anything herein to the contrary, (A) a no Restricted Payment (to any Fund or portion thereofFund Affiliate shall be made under Section 6.06(e), Section 6.06(j) need not be permitted solely by reference or Section 6.06(k) on any date prior to one category the date that is eighteen months after the Closing Date. The amount of permitted any Restricted Payments (or any portion thereof) described Payment made other than in the above clauses but form of cash or cash equivalents shall be the fair market value thereof, which shall be determined in good faith by the Borrower and may be permitted in part under any combination thereof and (B) in determined either, at the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more option of the categories of permitted Restricted Payments (or any portion thereof) described in the above clausesBorrower, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one as of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination date of the amount of definitive agreement with respect to such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)Payment.
Appears in 1 contract
Samples: First Lien Credit Agreement (Cec Entertainment Inc)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests Holdings Common Stock payable solely by the issuance of additional Equity Interests (other than Disqualified shares of Holdings Common Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any shares of the Borrower’s any class of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”)purpose; provided, however, that:
(a) Restricted Payments any Subsidiary may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the U.S. Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the U.S. Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the U.S. Borrower or such Subsidiary) based on their relative ownership interests);
(b) Restricted Payments the U.S. Borrower may be made declare and pay dividends or make other distributions to Intermediate Holdings (which may, in turn, declare and pay dividends or make other distributions to Holdings, in an amount equal to the dividends and distributions received by Intermediate Holdings) in respect of (i) overhead, tax liabilities of Holdings and Intermediate Holdings, legal, accounting and other professional fees and expenses of Holdings or any Parent Entityexpenses, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) ownership of the Borrower, (iv) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the U.S. Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its SubsidiariesIntermediate Holdings, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (ipayments permitted by Sections 6.07(b) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownershipc);
(c) Restricted Payments Holdings may be made purchase or redeem (and the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used so to purchase or redeem the redeem) Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the U.S. Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 7,500,000 (plus (x) the amount of net proceeds contributed to the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent EntityIntermediate Holdings, the U.S. Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and providedyear (it being understood that the amount carried forward from the fiscal year ended December 31, further, that cancellation of Indebtedness owing 2006 (“Fiscal Year 2006”) to the Borrower or any Subsidiary from members fiscal year ended December 31, 2007 (“Fiscal Year 2007”) for purposes of management of Holdings, any Parent Entity, Section 6.06(c) in the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not Existing Credit Agreement shall be deemed to constitute a Restricted Payment have been carried over from Fiscal Year 2006 to Fiscal Year 2007 for purposes of this Section 6.06paragraph (c);
(d) any person may make non-cash this Section 6.06 shall not prohibit noncash repurchases of Equity Interests that are deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) Holdings may purchase or redeem, or declare and pay dividends or make other distributions in respect of (and the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings so long as to purchase or redeem, or pay such dividends or make such other distributions in respect of) Equity Interests of Holdings (including the purchase or redemption of related stock appreciation rights or similar securities with respect to such Equity Interests) (i) no Default in the event the Leverage Ratio as of the last day of the most recently ended fiscal quarter prior to the date of such payment for which financial statements have been delivered pursuant to Section 5.04 is greater than or Event equal to 3.0 to 1.0, in the amount not to exceed the Dividend Payment Amount at the time of Default has occurred and is continuing such payment and (ii) after giving effect to such Restricted Payment, in the Net Total event the Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter prior to the date of such payment for which financial statements have been delivered pursuant to Section 5.04 is not greater less than 3.65 3.0 to 1.001.0, Restricted Payments may be made (A) in an aggregate amount equal not to a portion exceed (x) $200,000,000 minus (y) the aggregate amount of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.06(e)purchases, which such election shall (unless such Restricted Payment is redemptions, dividends and distributions previously made pursuant to this clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(f) Restricted Payments may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, or to allow Holdings or any Parent Entity to make payments, in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times Cumulative Net Income Amount at the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date time of such Restricted Payment (it being understood that payment, provided that, in the case of any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date dividend or distribution pursuant to this Section 6.06(j) shall not use capacity hereunderparagraph (e); provided, that no Default or Event of Default shall have occurred and be continuing;continuing or would result therefrom; and
(kf) [reserved];
Holdings may purchase or redeem (land the U.S. Borrower may declare and pay dividends or make other distributions to Intermediate Holdings, the proceeds of which are used by Intermediate Holdings to pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings so to purchase or redeem) Restricted Payments may be made Equity Interests of Holdings (including the purchase or redemption of related stock appreciation rights or similar securities with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect respect to such payment Equity Interests) in an aggregate amount not to exceed (x) $350,000,000 minus (y) the aggregate amount of purchases and redemptions made on or distribution on a Pro Forma Basisafter the Restatement Effective Date pursuant to this clause (f), provided that (A) the Net Total Leverage Ratio as of the last day of the most recently ended fiscal quarter prior to the date of such payment for which financial statements have been delivered pursuant to Section 5.04 is not greater less than 2.90 3.0 to 1.00; provided, that 1.0 and (B) no Default or Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on continuing or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000would result therefrom. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenantcontrary herein, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (Bi) in the event that a Restricted Payment (or of any portion thereof) meets the criteria of one or more merger of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the U.S. Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled into Intermediate Holdings pursuant to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”6.05(b)(i), any dividend or distribution permitted to be made under this Section 6.08 to the determination of the amount of such Restricted Payment (or any portion thereof) that U.S. Borrower may be made to Intermediate Holdings, (ii) in the event of any merger of Intermediate Holdings into Holdings pursuant to the Restricted Payments Incurrence Clause shall Section 6.05(b)(ii), any dividend or distribution permitted to be made without giving pro forma effect under this Section 6.08 to Intermediate Holdings (including pursuant to clause (i) of this paragraph) may be made to Holdings and (iii) in the event of any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any merger of the above clauses other than surviving entity of any merger of the Restricted Payments Incurrence Clause or U.S. Borrower and Intermediate Holdings with Holdings pursuant to Section 6.05(b)(ii), any dividend permitted to be made under this Section 6.08 to the incurrence of Indebtedness U.S. Borrower may be made to finance any such Restricted Payment (or any portion thereof)Holdings.
Appears in 1 contract
Dividends and Distributions. Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”equity); provided, however, that:
(a) Restricted Payments any Subsidiary of the Company may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower Company or to any Wholly Owned Subsidiary of the Borrower Company (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower Company or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower Company or such Subsidiary) based on their relative ownership interestsinterests so long as any repurchase of its Equity Interests from a person that is not the Company or a Subsidiary is permitted under Section 6.04);
(b) Restricted Payments the Company may be made declare and pay dividends or make other distributions (directly or indirectly) (i) to any Parent Entity in respect of (iA) overhead, legal, accounting accounting, consulting and other professional fees and expenses of Holdings or any Parent Entity, (iiB) fees and expenses related to any public offering or private placement of Equity Interests or debt securities of Holdings or any Parent Entity whether or not consummated, (iiiC) franchise and or similar taxes Taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its direct or indirect (or any Parent Entity’s direct or indirect) ownership of the BorrowerCompany, (ivD) payments permitted by Section 6.07(b) (other than except to the extent expressly subject to this Section 6.07(b)(vii6.06)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (viE) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors officers and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, provided that in the case of subclauses clauses (iA) and (iiiB), the amount of such Restricted Payments dividends and distributions shall not exceed the portion of any amounts referred to in such subclauses clauses (iA) and (iiiB) that are allocable to the Borrower Company and its Subsidiaries (which shall be 100% at any time thatfor so long as such Parent Entity, as the case may be, (x) Holdings beneficially owns no material assets other than the Equity Interests in the Company); (ii) with respect to any taxable period for which the Company is or has been a partnership or disregarded entity for U.S. federal income tax purposes, to any person that (directly or indirectly) held Equity Interests of the Borrower Company during such taxable period (a) to the extent such tax distributions are permitted under (I) the Amended and assets incidental to such equity ownership Restated United States Tax Agreement for NCL Corporation Ltd., dated January 24, 2013 or the Amended and Restated Profits Sharing Agreement for NCL Corporation Ltd., dated January 22, 2013, each as in effect on the Closing Date, (collectively, the “Tax Agreements”) or (yII) any amended version of the Tax Agreements to the extent such amendments are not materially adverse to the Lenders (collectively, the “Amended Tax Agreements”) and (b) to the extent not otherwise permitted under clause (a), tax distributions in respect of audit adjustments resulting from audits of the Company and/or its Subsidiaries commencing after the Closing Date, determined in a manner consistent with and subject to the limitations set forth in the Tax Agreements and the Amended Tax Agreements; and (iii) with respect to any taxable period for which the Company and any Parent Entity owns directly files an affiliated, consolidated, combined or indirectly no material assets other than Equity Interests of Holdings and unitary tax return in any other relevant jurisdiction, distributions to such Parent Entity and assets incidental in amount not to exceed the amount of any Taxes in such equity ownershipjurisdiction that the Company and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Company and/or its Subsidiaries, as applicable, been stand-alone taxpayers in such jurisdiction (less any portion of such amounts directly payable by the Company and/or its Subsidiaries);; provided, that distributions in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to Company or any of its Restricted Subsidiaries for such purpose.
(c) Restricted Payments the Company may be made to Holdings, declare and pay dividends or make other distributions (directly or indirectly) the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower Company or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year the greater of $48,000,000 [*] and [*]% of Consolidated Total Assets (plus (x) the amount of net proceeds contributed to the Borrower Company that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, arrangements and (y) the amount of net proceeds of any key-key man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 6.06;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;; and
(e) so long as the Company may pay dividends (idirectly or indirectly) no Default or Event of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its equity holders in an aggregate amount equal to a portion the portion, if any, of the Cumulative Credit on the such date of such election that the Borrower Company elects to apply to this Section 6.06(e(e), which such election shall (unless such Restricted Payment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth specified in a written notice of a Responsible Officer of the Borrower, which notice shall set forth calculations Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Company shall be in Pro Forma Compliance;
(f) Restricted Payments the Company may be made in connection with the consummation of the ADT Transactions;
(g) Restricted Payments may be made to pay, pay dividends or distributions to allow Holdings or any Parent Entity to make payments, payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;; and
(hg) Restricted Payments the Company may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not equal to exceed $100,000,000 for [*]% per annum of the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made net proceeds received by the Borrower Company from any public offering of any direct or any Subsidiary directly would be permitted to be made pursuant to Section 6.04; provided, that (A) such Restricted Payment shall be made substantially concurrently with indirect parent of the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired Company (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (to the extent permitted in Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on before or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereofClosing Date).
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Dividends and Distributions. Declare or pay pay, directly or indirectly, any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of the Borrower’s its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (all of the foregoing, “Restricted Payments”); provided, however, that, without duplication:
(a) Restricted Payments any subsidiary of the Borrower may be made declare and pay dividends to, repurchase its Equity Interests from or make other distributions to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the case of non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary subsidiary that is a direct or indirect parent of such Subsidiary subsidiary and to each other owner of Equity Interests of such Subsidiary subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiarysubsidiary) based on their relative ownership interests);
(b) Restricted Payments the Borrower may be made declare and pay dividends or make other distributions to the Parents in respect of (i) overhead, legal, accounting and other professional fees and expenses of Holdings or any Parent Entity, (ii) fees and expenses related to any public offering equity offering, investment or private placement of Equity Interests or debt securities of Holdings or any Parent Entity acquisition permitted hereunder (whether or not consummated, successful) and (iiiii) franchise and similar taxes and other fees and expenses in connection with the maintenance of its (or any Parent Entity’s) existence and its (or any Parent Entity’s indirect) attributable to their ownership of the Borrower, ;
(ivc) payments permitted by Section 6.07(b) (other than Section 6.07(b)(vii)), (v) in respect of any taxable period for which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary may purchase or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal income tax purposes that is wholly owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local income tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any U.S. federal, state, local or foreign taxes that the Borrower and/or its Subsidiaries, as applicable, would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and (vi) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of Holdings or any Parent Entity, in each case in order to permit Holdings or any Parent Entity to make such payments; provided, that in the case of subclauses (i) and (iii), the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such subclauses (i) and (iii) that are allocable to the Borrower and its Subsidiaries (which shall be 100% at any time that, as the case may be, (x) Holdings owns no material assets other than the redeem Equity Interests of the Borrower and assets incidental to such equity ownership or (y) any Parent Entity owns directly or indirectly no material assets other than Equity Interests of Holdings and any other Parent Entity and assets incidental to such equity ownership);
(c) Restricted Payments may be made to Holdings, the proceeds of which are used to purchase or redeem the Equity Interests of Holdings or any Parent Entity (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of any Parent Entity, Holdings, the Borrower or any of the Subsidiaries or by any Plan or any shareholders’ agreement then in effect upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, provided that the aggregate amount of such purchases or redemptions under this clause paragraph (c) shall not exceed in any fiscal year $48,000,000 7.5 million (plus (x) the amount of net proceeds contributed to received by the Borrower that were (x) received by Holdings or any Parent Entity during such calendar year from sales of Equity Interests of Holdings or any Parent Entity the Borrower to directors, consultants, officers or employees of Holdings, any Parent Entity, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements; provided, that such proceeds are not included in any determination of the Cumulative Credit, (y) the amount of net proceeds of any key-man life insurance policies received during such calendar year, and (z) the amount of any cash bonuses otherwise payable to members of management, directors or consultants of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with the ADT Transactions that are foregone in return for the receipt of Equity Interests), which, if not used in any year, may be carried forward to any subsequent calendar year; and provided, further, that cancellation of Indebtedness owing year so long as the aggregate amount expended in any year pursuant to the Borrower or any Subsidiary from members of management of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with a repurchase of Equity Interests of Holdings or any Parent Entity will this paragraph (c) does not be deemed to constitute a Restricted Payment for purposes of this Section 6.06exceed $15.0 million;
(d) any person may make non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options;
(e) so long as (i) no Default the Borrower may declare and pay dividends or Event make other distributions or reimbursements to DIRECTV or any of Default has occurred and is continuing and (ii) after giving effect to such Restricted Payment, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.65 to 1.00, Restricted Payments may be made its Affiliates in an aggregate amount equal to a portion the cash and cash equivalents that collateralize the Existing Letters of Credit as the Existing Letters of Credit are terminated or replaced as contemplated by the Transaction Agreement;
(f) the Borrower may pay dividends and make distributions to, or to repurchase or redeem shares from, its equity holders in an aggregate amount equal to the sum of (i) $30 million, plus (ii) the portion, if any, of the Available Cumulative Credit Amount on the date of such election that the Borrower elects to apply pursuant to this Section 6.06(e6.06(f), which ; provided that the amount in this clause (ii) shall only be available if (x) at the time of such election dividend or distribution no Default or Event of Default shall have occurred and be continuing and (unless y) immediately after giving effect to the making of such Restricted Payment is made dividend or distribution on a pro forma basis the Borrower would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to clause the Adjusted EBITDA Ratio test in the first paragraph of Section 6.01;
(ag) for so long as the Borrower is a Flow Through Entity, payment of dividends or other distributions to any member of the definition of “Cumulative Credit”Borrower in an amount, with respect to any period after the Closing Date, (i) be set forth in a written notice of a Responsible Officer not to exceed the tax amount that the Borrower is required to distribute to its members pursuant to Section 6.3.4 of the BorrowerLimited Liability Agreement of the Borrower as in effect on the Closing Date with respect to the Borrower for such period or (ii) in the event that Section 6.3.4 of the Limited Liability Agreement of the Borrower is no longer operable, which notice shall set forth calculations in reasonable detail equal to (A) the product of the amount of Cumulative Credit immediately prior aggregate net taxable income allocated by the Borrower to such election member of the Borrower for such period multiplied by the Presumed Tax Rate for such period less (B) the amount of dividends or other distributions, if any, received by such member from the Borrower during such period; and (b) if the Borrower is not a Flow Through Entity, payment of dividends or other distributions to any direct or indirect parent of the Borrower that files a consolidated U.S. federal tax return that includes the Borrower and its subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group; and
(h) any payment used to fund the Transactions and the amount thereof elected to be so applied;
(f) Restricted Payments may be fees and expenses related thereto or made in connection with the consummation of the ADT Transactions;
Transactions (g) Restricted Payments may be including payments made pursuant to payor as contemplated by the Transaction Documents, whether payable on the Closing Date or thereafter), or to allow Holdings or owed by any Parent Entity to make payments, in cash, in lieu parent of the issuance of fractional sharesBorrower, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
(h) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date to pay, or to allow Holding or any Parent Entity to pay, dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount not to exceed $100,000,000 for the period from the Ninth Incremental Assumption and Amendment Agreement Effective Date to December 31, 2019 and $400,000,000 per fiscal year for each subsequent fiscal year (commencing with the fiscal year ending December 31, 2020) (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(h) shall not use capacity hereunder);
(i) Restricted Payments may be made to Holdings or any Parent Entity to finance any Investment that if made by the Borrower or any Subsidiary directly would be permitted Subsidiaries of the Borrower to be made Affiliates pursuant to Section 6.04; providedthe Transaction Documents, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Subsidiary or (2) the merger, consolidation or amalgamation (in each case to the extent permitted in by Section 6.05) of the person formed or acquired into the Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 5.10;
(j) other Restricted Payments, combined with payments and distributions under Section 6.09(b)(i)(G), may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed the greater of $415,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the date of such Restricted Payment (it being understood that any Restricted Payments made prior to the Ninth Incremental Assumption and Amendment Agreement Effective Date pursuant to this Section 6.06(j) shall not use capacity hereunder); provided, that no Event of Default shall have occurred and be continuing;
(k) [reserved];
(l) Restricted Payments may be made with Excluded Contributions;
(m) other Restricted Payments so long as, immediately after giving effect to such payment or distribution on a Pro Forma Basis, the Net Total Leverage Ratio is not greater than 2.90 to 1.00; provided, that no Event of Default shall have occurred and be continuing;
(n) Restricted Payments constituting the Special Dividend; and
(o) Restricted Payments may be made on or after the Ninth Incremental Assumption and Amendment Agreement Effective Date in an aggregate amount not to exceed $600,000,000. Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.06 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement. For purposes of determining compliance with this covenant, (A) a Restricted Payment (or portion thereof) need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in the above clauses but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such permitted Restricted Payment (or any portion thereof) in any manner that complies with this covenant and at the time of division, classification or reclassification will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the categories of permitted Restricted Payments (or any portion thereof) described in the above clauses. In the event that a Restricted Payment (or any portion thereof) is divided, classified or reclassified under Section 6.06(m) (such clause, the “Restricted Payments Incurrence Clause”), the determination of the amount of such Restricted Payment (or any portion thereof) that may be made pursuant to the Restricted Payments Incurrence Clause shall be made without giving pro forma effect to any substantially concurrent Restricted Payment (or any portion thereof) divided, classified or reclassified under any of the above clauses other than the Restricted Payments Incurrence Clause or the incurrence of Indebtedness to finance any such Restricted Payment (or any portion thereof)6.07.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Hughes Communications, Inc.)
