Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”): (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 9 contracts

Samples: Credit Agreement (First Data Corp), Joinder Agreement (First Data Corp), Joinder Agreement (First Data Corp)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (i) all aggregate principal amounts paid pursuant to Section ~~10.7(a)(y)(i~~10.7(a)(y) from the ~~2014 July Repricing Effective~~ Original Closing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~x) if$400,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0payment of such dividend, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)Amount; (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options. Notwithstanding anything to the contrary contained in this Section 10 (including Section 10.5 and this Section 10.6), the Borrower will not, and will not permit any of its Restricted Subsidiaries to, pay any cash dividend or make any cash distribution on or in respect of the Borrower’s Stock or Stock Equivalents or purchase or otherwise acquire for cash any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower, for the purpose of paying any cash dividend or making any cash distribution to, or acquiring any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower for cash from the Sponsor, or guarantee any Indebtedness of any Affiliate of the Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Stock or Stock Equivalents to or from the Sponsor, in each case by means of utilization of the cumulative dividend and investment credit provided by the use of the Applicable Amount or the exceptions provided by Sections 10.5(i), (m) and (v), Sections 10.6(c) and (g) and Section 10.7(a)(y), unless at the time and after giving effect to such payment, the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 7.5 to 1.0.

Appears in 8 contracts

Samples: Credit Agreement (First Data Corp), Credit Agreement (First Data Corp), Credit Agreement (First Data Corp)

Appears in 7 contracts

Samples: Superpriority Secured Debtor in Possession Credit Agreement (Intelsat S.A.), Superpriority Secured Debtor in Possession Credit Agreement (Intelsat S.A.), Superpriority Secured Debtor in Possession Credit Agreement (Intelsat S.A.)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than ~~dividends~~ Dividends payable solely in its ~~Qualified Equity Interests~~Stock that is not Disqualified Stock) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the ~~Borrower~~Borrower (or any direct or indirect parent thereof), now or hereafter outstanding (all of the foregoing, “~~dividends~~Dividends”):); except that: (a) the Borrower may (or may pay ~~dividends~~ Dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents in exchange for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all material respects ~~material~~ to their interests as those contained in the Stock or Stock Equivalents redeemed thereby, and the Borrower may pay Dividends payable solely in the Stock and Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of the Borrower; (b) the Borrower may (i) (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, ~~estates~~ estates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, ~~so long as~~ upon the death, disability, retirement or termination of employment of any such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any equity option or equity appreciation rights plan, ~~management~~ any management, director and/or employee ~~stock plans~~equity ownership, ~~stock~~ benefit or incentive plan or agreement, equity subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any equity option or equity appreciation rights plan, any management, director and/or employee equity ownership, benefit or incentive plan or agreement~~; (c) provided that~~, ~~so long as (~~equity subscription plan, employment termination agreement or any other ~~than with respect to clause (c)(z) below) no Default~~ employment agreements or ~~Event of Default exists or would exist after giving effect thereto~~equity holders’ agreement, the ~~Borrower may pay dividends on its~~ aggregate amount of all cash paid in respect of all such shares of Stock or Stock ~~Equivalents~~Equivalents so redeemed, ~~provided that~~ acquired, retired or repurchased in any calendar year does not exceed the sum of (A) $50,000,000 (which shall increase to $100,000,000 subsequent to the consummation of Qualifying IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $75,000,000 in any calendar year (which shall increase to $150,000,000 subsequent to the consummation of a Qualifying IPO) plus (B) all net cash proceeds obtained by the Borrower during such calendar year from the sale of such Stock or Stock Equivalents to other present or former officers, consultants, employees, directors and managers in connection with any permitted compensation and incentive arrangements plus (C) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of ~~all such dividends paid from~~ payments in respect of Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the ~~Original Closing Date~~ two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this ~~clause (c~~Section 10.6(b)(i) (~~other than dividends paid pursuant~~ any amount so carried forward shall be deemed to ~~clause (c)(x) below prior to March 31, 2015~~be used last in the subsequent fiscal year)~~, when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ ; and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock ~~options~~options so long as the amount of such payments does not exceed $25,000,000 in the aggregate; (c) to the extent constituting Dividends, the Borrower may make Investments permitted by Section 10.5; (d) to the extent constituting Dividends, the Borrower may enter into and consummate transactions expressly permitted by any provision of Section 10.3; (e) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) upon exercise of stock options or warrants if such Stock or Stock Equivalents represents all or a portion of the exercise price of such options or warrants; (f) the Borrower may make and pay Dividends to Holdings or any other direct or indirect parent entity of the Borrower: (i) the proceeds of which will be used to pay (or to make Dividends to allow Holdings or any other direct or indirect parent of the Borrower to pay): (A) franchise and excise taxes, and other fees and expenses, required to maintain its organizational existence, and (B) Taxes of a consolidated, combined, affiliated or unitary group that includes any of the Borrower or its Subsidiaries, to the extent such Taxes are attributable to the Borrower or its Restricted Subsidiaries or, to the extent attributable to its Unrestricted Subsidiaries, to the extent of the amount actually received from its Unrestricted Subsidiaries, provided that in each case, the amount of such payments in any fiscal year does not exceed the amount that the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) would have been required to pay in respect of such foreign, federal, state or local taxes for such fiscal year had the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) been a stand-alone taxpayer (separate from Holdings or any other direct or indirect parent company of the Borrower) for all fiscal years ending after the Closing Date; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $25,000,000 in any fiscal year plus any actual, reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof); (iii) the proceeds of which shall be used by such parents to pay Dividends contemplated by Section 10.6(b); (iv) the proceeds of which shall be used to make Dividends to allow any direct or indirect parent thereof to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity issuance or offering or debt issuance, incurrence or offering, Disposition or acquisition or investment transaction permitted by this Agreement; (v) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of any direct or indirect parent thereof, to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; and (vi) in the form of Stock or Stock Equivalents of the Borrower (other than Disqualified Stock not otherwise permitted by Section 10.1); (g) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) so long as, after giving Pro Forma Effect thereto, (A) no Default or Event of Default shall have occurred and be continuing and (B) no Borrowing Base Deficiency exists, honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (h) the Borrower may pay any Dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (i) so long as, after giving Pro Forma Effect thereto, together with any concurrent Dividends being paid under Sections 10.6(i) and (j), (i) no Event of Default shall have occurred and be continuing, and (ii) Liquidity is not less than 10% of the then effective Borrowing Base (on a Pro Forma Basis after giving effect to such Dividend), the Borrower may declare and pay additional Dividends without limit in cash or other otherwise to the holders of its Stock and Stock Equivalents; provided, that, in the case of any Dividend in the form of assets other than cash, no such Dividend shall be made if a Borrowing Base Deficiency would result from an adjustment to the Borrowing Base resulting from such Dividend (unless the Borrower shall have cash on hand sufficient to eliminate any such potential Borrowing Base Deficiency); (j) in addition to the foregoing Dividends and so long as no Event of Default shall have occurred and be continuing or would result therefrom and after giving effect to the making of any such Dividend, together with any concurrent Dividends being paid under Sections 10.6(i) and (j), the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant as such covenant is re-computed as of the last day of the most recently ended Test Period as if (i) such Dividend had been paid on the first day of such Test Period and (ii) the amount of any Cure Amount made during such Test Period were not made to the extent (A) the amount of the Applicable Equity Amount after making the proposed Dividend is less than or equal to the amount of such Cure Amount and (B) such Cure Amount was necessary for the Borrower to be in compliance on a Pro Forma Basis with the Financial Performance Covenant, the Borrower may declare and pay Dividends in an aggregate amount not to exceed the Applicable Equity Amount at the time such Dividend is paid; and (k) the Borrower may make payments described in Sections 9.9(a), (f), (g), (h), (j) and (l) (subject to the conditions set out therein).

Appears in 5 contracts

Samples: Credit Agreement (Samson Resources Corp), Credit Agreement (Samson Resources Corp), Fourth Amendment Agreement (Samson Resources Corp)

Limitation on Dividends. ~~The~~ None of Holdings, the Borrower or the Canadian Borrower will ~~not~~ declare or pay any dividends (other ~~than~~ than, (a) in respect of Holdings, dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock and (b) in respect of the Borrower, dividends payable solely in its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock~~ shares of any class of the capital stock of Holdings or ~~Stock Equivalents of~~ the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~ provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) Holdings or the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock~~ shares of its capital stock (or ~~Stock Equivalents~~pay dividends with such proceeds), provided that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) Holdings or the Borrower may (or may pay ~~dividends~~ Dividends to ~~permit any direct or indirect parent thereof to)~~ Parent to repurchase shares of its or Parent’s capital stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its or Parent’s capital stock) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates~~directors and employees of Parent, ~~estates or immediate family members)~~ Holdings and its Subsidiaries, with the proceeds of dividends from, seriatim, the Borrower and ~~its Subsidiaries or any parent thereof~~Holdings, as applicable, which shall also be permitted, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) the Borrower and the Restricted Subsidiaries may make investments permitted by Section 10.5, (d) Holdings may declare and pay Dividends on its capital stock, with the proceeds of dividends from, the Borrower, which shall also be permitted to declare and pay dividends on its capital stock, provided ~~that~~that (i) subject to clause (ii) below, ~~so long as~~ the aggregate amount of such Dividends paid by Holdings pursuant to this clause (~~other than~~ d) shall not at any time exceed the sum of (x) $30,000,000 in the aggregate per annum and (y) 50% of Cumulative Consolidated Net Income Available to Stockholders at such time less the amount of Dividends previously paid pursuant to clause (i)(x) or (i)(y) of this proviso following the last day of the most recent fiscal quarter for which Section 9.1 Financials have been delivered to the Lenders under Section 9.1, (ii) with respect to ~~clause~~ each of clauses (~~c)(z~~x) ~~below) no Default or Event~~ and (y), at the time of ~~Default exists or would exist~~ the payment of any such Dividends and after giving effect thereto, ~~the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause~~ both (ca) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is on the date of such payment of such dividends shall be less than ~~7.0 to 1.0, $200,000,000 or~~ 5.00:1.00 and (b) ~~if, on a Pro Forma Basis,~~ the Consolidated ~~Total~~ Senior Debt to Consolidated EBITDA Ratio ~~is greater than 7.0 to 1.0, $0 plus (y) if,~~ on ~~a Pro Forma Basis,~~ the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is~~ date of such payment of such dividends shall be less than ~~7.0 to 1.0, the Applicable Amount plus~~ 3.50:1.00 and (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (de) the Borrower and Holdings may declare and pay ~~dividends: (i)~~ dividends and/or make distributions on its capital stock, as applicable, the proceeds of which will be used by Parent or Holdings solely to pay ~~income tax liability attributable to~~ taxes of Parent, Holdings, the Borrower and the ~~Restricted~~ Subsidiaries ~~in respect~~ as part of ~~consolidated~~a consolidated tax filing group for U.S. federal, ~~combined~~state or local tax purposes, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone groupalong with franchise taxes, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting administrative and similar expenses ~~provided by third parties), which are reasonable~~ related to its existence and ~~customary and incurred in the ordinary course of business and attributable to the~~ ownership ~~or operations~~ of the Borrower, as applicable, provided that the amount of such dividends does not to exceed ~~$3,500,000~~ in any fiscal year ~~plus (B) any reasonable and customary indemnification claims made by directors or officers~~ the amount of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such ~~Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees,~~ taxes and expenses ~~required to maintain~~ payable for such fiscal year (it being understood that such expenses shall in no event exceed $1,000,000 in the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% aggregate per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsfiscal year).

Appears in 3 contracts

Samples: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)

Limitation on Dividends. ~~The Borrower will not~~ No Loan Party or any Restricted Subsidiary shall (x) declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock (other than Disqualified Stock)) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or (y) redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or ~~Stock Equivalents~~ other Equity Interests or the Stock or ~~Stock Equivalents~~ other Equity Interests of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding purposes (all of the ~~foregoing~~foregoing “Dividends”); provided, ~~“dividends”):~~that this Section 9.2.6 shall not prevent any Dividend or payment if the Payment Condition is met with respect to such Dividend or payment at the time thereof and after giving effect thereto or, in the case of a Limited Condition Transaction, at the LCT Test Date; provided, further, that: (a) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or ~~Stock Equivalents~~ other Equity Interests for another class of its ~~(or such parent’s)~~ Stock or ~~Stock Equivalents~~ other Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Stock or ~~Stock Equivalents~~other Equity Interests, ~~provided~~ provided, that such new Stock or ~~Stock Equivalents~~ other Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or ~~Stock Equivalents~~ other Equity Interests redeemed thereby; (b) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may (or may ~~pay dividends~~ make Dividends to permit any direct or indirect parent thereof to) repurchase shares of ~~its~~ Holdings’ (or ~~such parent~~a Parent Entity’s) Stock or ~~Stock Equivalents~~ other Equity Interests held by ~~any~~ present or former ~~officer~~officers, ~~director~~ directors, employees or ~~employee~~ consultants of the Loan Parties and the Restricted Subsidiaries (or ~~their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or~~ any ~~parent thereof~~such parent), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements~~ agreements; provided, that the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year does not exceed in any calendar year the sum of (i) the greater of (x) $35,000,000 and (y) 0.60% of Consolidated Total Assets as of the last day of the most recently ended Test Period (with unused amounts in any calendar year being carried over to succeeding calendar years; provided that Dividends made under this clause (b)(i) do not exceed the greater of (x) $75,000,000 and (y) 1.25% of Consolidated Total Assets as of the last day of the most recently ended Test Period in any calendar year); plus (ii) all amounts obtained by Holdings (or a Parent Entity) (to the extent contributed to a Borrower) during such calendar year from the sale of such Stock or other Equity Interests to other officers, directors, employees or consultants of Holdings and its Subsidiaries in connection with any ~~other management or employee benefit plan or agreement~~permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no ~~Default or~~ Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may pay ~~dividends on its Stock or Stock Equivalents~~additional Dividends in an aggregate amount per annum not to exceed the greater of (x) $175,000,000 and (y) 5.0% of Market Capitalization as of the last day of the most recently ended Test Period, ~~provided that~~ less (y) the amount of ~~all such dividends paid from the Original Closing Date~~ voluntary prepayments, repurchases, redemptions, other defeasances and sinking fund payments in respect of Junior Debt made pursuant to ~~this clause~~ Section 9.2.7(a)(i)(y) and less (cz) ~~(other than dividends paid~~ the amount of Investments made pursuant to clause (~~c)(x~~2)(a) ~~below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to~~ of Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c9.2.5(k)(ii); (d) ~~the Borrower~~ each Loan Party and each Restricted Subsidiary may pay ~~dividends~~Dividends: (i) so long as no Specified Default exists or would exist after giving effect thereto, to its direct or indirect parent in amounts sufficient (when combined with loans and advances made by the ~~proceeds~~ Loan Parties for such purpose under Section 9.2.5(g)(iv)) for any such parent to pay its income tax obligations for so long as such Loan Party is a member of ~~which~~ a group filing a consolidated, combined, unitary, affiliated or other similar tax return with such parent; provided that the amount of Dividends paid under this clause (i) in respect of income tax obligations is limited to the extent such tax liability is directly attributable to the taxable income of such Loan Party (that are included in such consolidated, combined, unitary, affiliated or other similar tax return), determined as if such Loan Party and its Restricted Subsidiaries filed a separate consolidated, combined, unitary, affiliated or other similar tax return as a stand-alone group and will be used to pay ~~income~~ (or to make Dividends to allow any direct or indirect parent to pay), within thirty (30) days of the receipt thereof, the tax liability ~~attributable to the Borrower and the Restricted Subsidiaries~~ in each relevant jurisdiction in respect of such consolidated, combined, ~~unitary~~ unitary, affiliated or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiariesother similar returns; (ii) the proceeds of which (when combined with loans and advances made by the Loan Parties for such purpose under Section 9.2.5(g)(iv)) shall be used to allow any direct or indirect parent of ~~the Borrower~~ such Loan Party to pay (A) its accrued operating expenses incurred in the ~~ordinary course~~ Ordinary Course of ~~business~~ Business and other accrued corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ~~ordinary course~~ Ordinary Course of ~~business and attributable to the ownership~~ Business of WS (or ~~operations of the Borrower, not to exceed $3,500,000 in~~ any ~~fiscal year~~ Parent Entity) plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ WS (or any parent thereof) attributable to the ownership or operations of ~~the Borrower~~ WS and its ~~Restricted~~ Subsidiaries or (CB) fees and expenses otherwise (1) due and payable by ~~the Borrower~~ WS or any of its ~~Restricted~~ Subsidiaries and (2) permitted to be paid by ~~the Borrower~~ WS or such ~~Restricted~~ Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) without duplication of clause (i), above, the proceeds of which (when combined with loans and advances made by the Loan Parties for such purpose in reliance on Section 9.2.5(g)(iii)) shall be used to pay franchise ~~and excise~~ taxes and other fees, similar taxes and expenses ~~required~~ required, in each case, to maintain the corporate existence of any ~~direct or indirect parent~~ Parent Entity within thirty (30) days of the ~~Borrower~~receipt thereof; (iv) constituting repurchases of Stock or other Equity Interests upon the cashless exercise of stock options; and (ivv) the proceeds of which are applied on the Closing Date, solely to ~~any direct or indirect parent~~ effect the consummation of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicableTransactions; (e) ~~[Reserved]~~(i) any Restricted Subsidiary that is not a Loan Party may pay Dividends to a Loan Party, to any other Restricted Subsidiary or to its equityholders ratably and (ii) any Loan Party may pay a Dividend to any other Loan Party (provided that if any Dividend by a US Loan Party to a non-US Loan Party consists of a distribution of Specified Assets (as reasonably determined by the Administrative Borrower) exceeding the greater of (x) $120,000,000 and (y) 2.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period or of Stock or all or a substantial portion of the assets of any US Loan Party, the Administrative Borrower shall deliver an updated Borrowing Base Certificate, giving effect to such Dividend and showing compliance with the applicable Borrowing Base) or any Restricted Subsidiary that is not a Loan Party if, in the case of a payment to a Restricted Subsidiary that is not a Loan Party, (x) such Dividend is a part of a series of transactions by which such Dividend is ultimately and promptly paid to a Loan Party or (y) such Dividend is part of a Dividend being made to the equityholders of any class of such Loan Party ratably; (f) the ~~Borrower or any of~~ Loan Parties and the Restricted Subsidiaries may make additional Dividends in an amount not to exceed the portion, if any, of the Available Excluded Contribution Amount on such date that the Administrative Borrower elects to apply to this clause (if) ~~pay cash in lieu~~ (which amounts shall reduce the amount of ~~fractional shares in connection with~~ the Available Excluded Contribution Amount that may be applied for any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its termsother purpose hereunder); (g) the ~~Borrower~~ Loan Parties and other Restricted Subsidiaries may ~~pay any dividend or distribution~~ make additional Dividends within 60 sixty (60) days after the date of the declaration ~~thereof~~thereof or the provision of a redemption notice with respect thereto, as the case may be, if (i) at the date of such declaration or notice, such ~~payment~~ Dividend would have complied with ~~the provisions~~ another provision of this ~~Agreement;~~Section 9.2.6 and (ii) the Administrative Borrower reasonably expects, as of such date of declaration or such date of provision of a redemption notice, the Loan Parties and the other Restricted Subsidiaries to be able to comply with such other provision of this Section 9.2.6 through either (x) the end of such sixty (60) day period or (y) if earlier, the latest date on which such declaration or provision of a redemption notice allows for such Dividend to be made; provided, that the making of any such Dividend will reduce capacity for Dividends pursuant to such other provision of this Section 9.2.6 when the declaration or provision of a redemption notice is so made; and (h) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and Restricted Subsidiaries may ~~declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock~~ make Dividends to Holdings or ~~the common stock of~~ any ~~of its direct or indirect parents after the Original Closing Date, of up~~ Parent Entity in an aggregate amount per annum not to exceed 6% ~~per annum~~ of the net cash proceeds received by or contributed ~~as common equity~~ to WS from a capital contribution to Holdings or the ~~Borrower in~~ issuance or ~~from any such public~~ offering of Equity Interests of Holdings, other than (x) with respect to Disqualified Stock, (y) to the extent such ~~net~~ proceeds ~~are not utilized in connection~~ constitute Available Excluded Contribution Amounts the Administrative Borrower has elected to apply to clause (f) above or any other provision of this Agreement or (z) with ~~other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal~~ respect to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsa Cure Amount.

Appears in 3 contracts

Samples: Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.), Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.), Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.)

Limitation on Dividends. ~~The Borrower will not~~ No Loan Party shall declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock (other than Disqualified Stock) or dividends permitted by clause (e) below) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or ~~Stock Equivalents~~ other Equity Interests or the Stock or ~~Stock Equivalents~~ other Equity Interests of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding purposes (all of the ~~foregoing~~foregoing “Dividends”); provided that, ~~“dividends”):~~this Section 10.2.6 shall not prevent any Dividend if the Payment Condition is met with respect to such Dividend or payment at the time thereof and after giving effect thereto; provided, further, that: (a) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or ~~Stock Equivalents~~ other Equity Interests for another class of its ~~(or such parent’s)~~ Stock or ~~Stock Equivalents~~ other Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Stock or ~~Stock Equivalents~~other Equity Interests, provided that such new Stock or ~~Stock Equivalents~~ other Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or ~~Stock Equivalents~~ other Equity Interests redeemed thereby; (b) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may (or may ~~pay dividends~~ make Dividends to permit any direct or indirect parent thereof to) repurchase shares of ~~its~~ Holdings’ (or ~~such parent~~a Parent Entity’s) Stock or ~~Stock Equivalents~~ other Equity Interests held by ~~any~~ present or former ~~officer~~officers, ~~director~~ directors, employees or ~~employee~~ consultants of the Loan Parties and the Restricted Subsidiaries (or ~~their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or~~ any ~~parent thereof~~such parent), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements~~ agreements; provided, that the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year does not exceed in any calendar year the sum of (i) $10,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years; provided that Dividends made under this clause (b)(i) do not exceed $20,000,000 in any calendar year); plus (ii) all amounts obtained by Holdings (or a Parent Entity) (to the extent contributed to a Borrower) during such calendar year from the sale of such Stock or other Equity Interests to other officers, directors, employees or consultants of Holdings and its Subsidiaries in connection with any ~~other management or employee benefit plan or agreement~~permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no ~~Default or~~ Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may pay ~~dividends on its Stock or Stock Equivalents~~additional Dividends in an aggregate amount not to exceed $30,000,000, ~~provided that~~ (x) less the amount of ~~all such dividends paid from the Original Closing Date pursuant to this clause (c) (~~voluntary prepayments, repurchases, redemptions, other ~~than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid~~ defeasances and sinking fund payments in respect of Junior Debt made pursuant to Section ~~10.7(a)(y)(i~~10.2.7(a)(i) ~~from the 2014 July Repricing Effective Date~~ and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) ~~if, on a Pro Forma Basis, the Consolidated Total Debt~~ subject to ~~Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus~~ any reductions (zif any) ~~the Applicable Equity Amount at such time; for the avoidance~~ required by clause (2) of ~~doubt, amounts prepaid in reliance on and in compliance with~~ Section ~~10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c~~10.2.5(k)(ii); (d) ~~the Borrower~~ each Loan Party and each Restricted Subsidiary may pay ~~dividends~~Dividends: (i) (A) so long as no Specified Default exists or would exist after giving effect thereto, to its direct or indirect parent in amounts sufficient (when combined with loans and advances made by the ~~proceeds~~ Loan Parties for such purpose under Section 10.2.5(g)(iv)) for any such parent to pay its income tax obligations for so long as such Loan Party is a member of ~~which~~ a group filing a consolidated, combined, unitary, affiliated or other similar tax return with such parent; provided the amount of Dividends paid under this clause (i) in respect of income tax obligations is limited to the extent such tax liability is directly attributable to the taxable income of such Loan Party (that are included in such consolidated, combined, unitary, affiliated or other similar tax return), determined as if such Loan Party and its Restricted Subsidiaries filed a separate consolidated, combined, unitary, affiliated or other similar tax return as a stand-alone group and will be used to pay ~~income~~ (or to make Dividends to allow any direct or indirect parent to pay), within 30 days of the receipt thereof, the tax liability ~~attributable to the Borrower and the Restricted Subsidiaries~~ in each relevant jurisdiction in respect of such consolidated, combined, ~~unitary~~ unitary, affiliated or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiariesother similar returns; (ii) so long as no Specified Default exists or would exist after giving effect thereto, the proceeds of which (when combined with loans and advances made by the Loan Parties for such purpose under Section 10.2.5(g)(iv)) shall be used to allow any direct or indirect parent of ~~the Borrower~~ such Loan Party to pay (A) its accrued operating expenses incurred in the ~~ordinary course~~ Ordinary Course of ~~business~~ Business and other accrued corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ~~ordinary course~~ Ordinary Course of ~~business and attributable to the ownership~~ Business of Arrow Bidco (or ~~operations of the Borrower, not to exceed $3,500,000 in~~ any ~~fiscal year~~ Parent Entity) plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ Arrow Bidco (or any ~~parent thereof~~Parent Entity) attributable to the ownership or operations of ~~the Borrower~~ Arrow Bidco and its ~~Restricted~~ Subsidiaries or (CB) fees and expenses otherwise (1) due and payable by ~~the Borrower~~ Arrow Bidco or any of its ~~Restricted~~ Subsidiaries and (2) permitted to be paid by ~~the Borrower~~ Arrow Bidco or such ~~Restricted~~ Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) [Reserved]; (iv) without duplication of clause (i), above, the proceeds of which (when combined with loans and advances made by the Loan Parties for such purpose in reliance on Section 10.2.5(g)(iv)) shall be used to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain the corporate existence of any ~~direct or indirect parent~~ Parent Entity within 30 days of the ~~Borrower~~receipt thereof; (v) constituting repurchases of Stock or other Equity Interests upon the cashless exercise of stock options; and (ivvi) the proceeds of which are applied on the Closing Date, solely to ~~any direct or indirect parent~~ effect the consummation of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicableTransactions; (e) ~~[Reserved]~~(i) any Restricted Subsidiary that is not a Loan Party may pay Dividends to a Loan Party or any other Restricted Subsidiary and (ii) any Loan Party may pay a Dividend to any other Loan Party or to any Restricted Subsidiary that is not a Loan Party if, in the case of a payment to a Restricted Subsidiary that is not a Loan Party, such Dividend is part of a series of transactions by which such Dividend is ultimately and promptly paid to a Loan Party; (f) the ~~Borrower or any~~ Borrowers may make additional Dividends in an amount not to exceed the portion, if any, of the ~~Restricted Subsidiaries may~~ Available Excluded Contribution Amount on such date that the Administrative Borrower elects to apply to this clause (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with f); provided that any such ~~conversion and may make payments on convertible Indebtedness in accordance with its terms~~Dividend shall be made within 90 days after the receipt of such Available Excluded Contribution Amount; (g) the ~~Borrower~~ Loan Parties and other Restricted Subsidiaries may ~~pay any dividend or distribution~~ make additional Dividends within 60 days after the date of the declaration ~~thereof~~thereof or the provision of a redemption notice with respect thereto, as the case may be, if (i) at the date of such declaration or notice, such ~~payment~~ Dividend would have complied with ~~the provisions~~ another provision of this ~~Agreement;~~Section 10.2.6 and (ii) the Administrative Borrower reasonably expects, as of such date of declaration or such date of provision of a redemption notice, the Loan Parties and the other Restricted Subsidiaries to be able to comply with such other provision of this Section 10.2.6 through either (x) the end of such sixty (60) day period or (y) if earlier, the latest date on which such declaration or provision of a redemption notice allows for such Dividend to be made; provided that the making of any such Dividend will reduce capacity for Dividends pursuant to such other provision of this Section 10.2.6 when the declaration or provision of a redemption notice is so made; and (h) so long as no Event of Default exists or would exist after giving effect thereto, the Administrative Borrower may ~~declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock~~ make Dividends to Holdings or ~~the common stock of~~ any ~~of its direct or indirect parents after the Original Closing Date, of up~~ Parent Entity in an aggregate amount per annum not to exceed 6% ~~per annum~~ of the net cash proceeds received by or contributed ~~as common equity~~ to Arrow Bidco from a capital contribution to Holdings or the ~~Borrower in~~ issuance or ~~from any such public~~ offering of Equity Interests of Holdings, other than (x) with respect to Disqualified Stock, (y) to the extent such ~~net~~ proceeds ~~are not utilized in connection~~ constitute Available Excluded Contribution Amounts the Administrative Borrower has elected to apply to clause (f) above or (z) with ~~other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal~~ respect to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsa Cure Amount.

Appears in 3 contracts

Samples: Abl Credit Agreement (Target Hospitality Corp.), Abl Credit Agreement (Target Hospitality Corp.), Abl Credit Agreement (Target Hospitality Corp.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing,~~ foregoing “dividends”); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto (except with respect to clause (e) below): (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part or pay dividends upon any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its capital stock; provided that (X) such ~~new Stock~~ contributions or ~~Stock Equivalents contain~~ issuances shall not increase the Applicable Amount and (Y) such other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; (b) the Borrower may repurchase shares of its capital stock (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) held by officers, directors and employees of the Borrower and its Subsidiaries and may ~~pay~~ make dividends the proceeds of which are to ~~permit~~ be used by any direct or indirect parent ~~thereof to)~~ of the Borrower to repurchase shares of ~~its (or~~ the capital stock of any such ~~parent’s) Stock or Stock Equivalents~~ parent held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries or of any ~~parent thereof~~such parent, in either case so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may declare and pay dividends on its ~~Stock or Stock Equivalents,~~ capital stock; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may declare and pay ~~dividends: (i) the proceeds of which will be used~~ dividends and/or make distributions to ~~pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect~~ any parent of the Borrower ~~in an amount not to exceed the income tax liability~~ or commonly controlled Affiliate of ~~the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by~~ any ~~such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect~~ parent of the Borrower to pay ~~(A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs~~ fees and expenses ~~(including administrative, legal, accounting~~ related to ownership and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations operation of the Borrower and its ~~Restricted~~ Subsidiaries or (C) including fees and expenses ~~otherwise due~~ (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 parent of the Borrower and general corporate overhead expenses of any parent of the Borrower); (e) the Borrower may declare and pay dividends and/or make distributions to Holdings (or any other entity that may be a parent of Holdings) for the purpose of paying fees to the Sponsors of the types contemplated in Sections 9.9(a) (provided that such fees contemplated in Section 9.9(a) are paid quarterly when due), (b) and (c); provided that no such dividend or distribution contemplated by this clause (e) may be paid to the extent that the Borrower has paid a like amount for a substantially similar service to the Sponsors directly, as contemplated in Section 9.9; (f) the Borrower may declare and pay dividends at the times and in the amounts required for any parent of the Borrower to pay regularly scheduled interest on Indebtedness the proceeds of which have been contributed to the Borrower or any of its Restricted Subsidiaries and ~~permitted to be paid by~~ that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower ~~or such Restricted Subsidiary under this Agreement (including~~ incurred in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to accordance with Section ~~10.5~~10.1; provided that ~~(A) such dividend shall be made substantially concurrently with~~ the ~~closing~~ amount of ~~such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents)~~ cash dividends paid pursuant to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; this clause (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with to enable any such ~~conversion~~ parent to make any such payments and ~~may~~ redemptions shall not exceed the amount necessary to make such payments ~~on convertible Indebtedness in accordance with its terms~~and redemptions at such time; (g) for any taxable year, the Borrower may declare and pay dividends or other distributions to any ~~dividend~~ parent of the Borrower if such parent is required to file a consolidated, unitary or ~~distribution within 60 days after~~ similar tax return reflecting income of the ~~date~~ Borrower or its Restricted Subsidiaries, in an amount equal to the portion of ~~declaration thereof~~such taxes attributable to the Borrower and/or its Restricted Subsidiaries that are not payable directly by the Borrower and/or its Restricted Subsidiaries, ~~if at~~ but not to exceed the ~~date of declaration~~ amount that the Borrower and/or such ~~payment~~ Restricted Subsidiaries would have ~~complied with~~ been required to pay in respect of such taxes if the ~~provisions of this Agreement~~Borrower and/or such Restricted Subsidiaries (as applicable) had been required to pay such taxes directly as standalone taxpayers (or a standalone group separate from such parent); (h) the Borrower may declare and pay dividends to any parent entity (which may dividend or on-loan such money to any of its parent entities) to the extent that amounts equal to such dividends are immediately contributed to the capital of, or paid as interest and/or principal on debt to, the Borrower or any Restricted Subsidiary; provided that such subsequent contribution shall not constitute contributions of Disqualified Preferred Stock, a CI Contribution, a Permitted Equity Issuance pursuant to Section 12.13 or a contribution for purposes of the definition of “Applicable Amount;” (i) the Borrower may declare and pay dividends (and may declare dividends to be made to repay Investments made pursuant to Section 10.5(y)) at the times and in the amounts necessary to enable any parent of the Borrower to (i) make regularly scheduled interest payments on the Existing Parent Indebtedness and (ii) repay, purchase, redeem, retire, defease or otherwise acquire for value the principal and premium, if any, of the Intelsat S.A. Notes; provided that the amount of cash dividends paid pursuant to this clause (i) to enable any such parent to make any such payments and redemptions shall not exceed the amount necessary to make such payments and redemptions at such time; (j) the Borrower may pay dividends the proceeds of which are used substantially simultaneously to pay interest or the principal amount of debt obligations owed to (x) any Credit Party and (y) to any Subsidiary that is not a Credit Party; provided that in the case of this clause (y) such dividends do not exceed $75,000,000 in the aggregate in any fiscal year; (k) the Borrower may declare and pay dividends or distributions to holders of any class or series of Disqualified Preferred Stock of the Borrower or any of its Restricted Subsidiaries issued or incurred in accordance with Section 10.1(B); provided that the aggregate amount of dividends declared and paid pursuant to this clause (k) does not exceed the Net Cash Proceeds actually received by the Borrower from any such sale of Disqualified Preferred Stock after the Closing Date; and (l) the Borrower may declare and pay dividends on the Borrower’s ordinary shares or common stock ~~following~~ (or the ~~first public offering~~ payment of dividends to any parent of the Borrower, as the case may be, to fund the payment by any parent of the Borrower of dividends on such entity’s ordinary shares or common ~~stock or the common stock of any of its direct or indirect parents after the Original Closing Date,~~ stock) of up to 67.5% per annum of the net proceeds received by the Borrower from any public offering of ordinary shares or common stock or contributed ~~as common equity~~ to the Borrower ~~in or~~ by any parent of the Borrower from any ~~such~~ public offering ~~to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6~~ of ordinary shares or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionscommon stock.

Appears in 3 contracts

Samples: Amendment No. 3 and Joinder Agreement (Intelsat S.A.), Amendment No. 2 and Joinder Agreement (Intelsat S.A.), Credit Agreement (Intelsat S.A.)

Limitation on Dividends. ~~The Borrower will not declare~~ Declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Capital Stock or Capital Stock Equivalents) or return any capital to its ~~stockholders (including any option holders)~~ shareholders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ shareholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock ~~or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ now or hereafter ~~outstanding,~~ outstanding (or ~~set aside~~ any ~~funds for any of the foregoing purposes~~Capital Stock Equivalents), or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~6.05 (except for any such Investment involving the purchase of Capital Stock of the Borrower from shareholders of the Borrower)) any shares of any class of the Capital Stock ~~or Stock Equivalents~~ of the Borrower, now or hereafter outstanding (or any Capital Stock Equivalents) (all of the foregoing, “~~dividends~~Dividends”):); provided, that so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that such ~~new~~ other class of Capital Stock ~~or Stock Equivalents contain~~ contains terms and provisions at least as advantageous to the Lenders in all material respects ~~material to their interests~~ as those contained in the Capital Stock ~~or Stock Equivalents~~ redeemed thereby; (b) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its Capital Stock (or ~~such parent’s~~any Capital Stock Equivalents) ~~Stock or Stock Equivalents~~ held by ~~any present~~ current or former ~~officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries ~~or any parent thereof~~in an aggregate amount not to exceed $30,000,000 in the aggregate from and after the Separation, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements, employment agreements or shareholder agreements or ~~any other management or employee benefit plan or agreement~~termination agreements; (c) ~~provided that, so long as (other than with respect~~ in addition to clause (~~c)(z~~d) below~~) no Default or Event of Default exists or would exist after giving effect thereto~~, the Borrower or any Restricted Subsidiary may ~~pay dividends~~ declare and make distributions or Dividends on its Capital Stock at any time or ~~Stock Equivalents,~~ pay other Dividends; provided that (i) the aggregate amount of all such ~~dividends~~ distributions or Dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of by the Borrower pursuant to ~~Section 10.5(m) in lieu of dividends permitted by~~ this clause (c) shall not exceed ~~an amount equal to (x)(a) if, on a Pro Forma Basis,~~ the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Available Amount at the time of such ~~time; for the avoidance of doubt, amounts prepaid in reliance on~~ distribution or Dividend and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries would be in pro forma compliance with all Financial Covenants for the most recent Test Period for which financial statements are publicly available after giving effect to such distribution or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Dividend; (~~iii~~d) any Restricted Subsidiary may pay any Dividend (or, in the case of any partnership or limited liability company, any similar distribution) to (i) any Loan Party or (ii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any holders of its ~~Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable~~Equity Interests on a pro rata basis; (e) ~~[Reserved]; (f)~~ the Borrower ~~or any of the Restricted Subsidiaries~~ may (i) ~~pay cash~~ make payments to holders of the Borrower’s Capital Stock in lieu of the issuance of fractional shares ~~in connection with any dividend, split or combination thereof or any Permitted Acquisition~~ of its Capital Stock; and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (f) the Borrower may enter into transactions for the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all the holders of Capital Stock of the Borrower pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights is not for the purpose of evading the limitations of this covenant (all as determined in good faith by the Board of Directors of the Borrower); (g) the Borrower or any Restricted Subsidiary may pay any ~~dividend~~ Dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower ~~may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock~~ or ~~the common stock of~~ any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower Restricted Subsidiary may pay ~~dividends~~ Dividends in an amount equal to withholding or similar Taxes ~~payable or expected to be~~ payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members); (i) the Borrower or any Restricted Subsidiary may make payments, advances or loans (or cancellation of loans), pursuant to employment and severance arrangements and health and benefit plans or agreements between the Borrower and its Subsidiaries and their respective officers, employees or consultants (including management and employee benefit plans or agreements, stock option plans and other compensatory arrangements) in the ordinary course of business; (j) the Borrower or any Restricted Subsidiary may make payments pursuant to tax sharing agreements among the Borrower and/or its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and/or its Subsidiaries; and (k) the Borrower may redeem in whole or in part any of its preferred stock with proceeds from substantially concurrent equity contributions or issuances of new shares of its Capital Stock (other than Disqualified Stock); provided, however that (i) following the delivery of a blockage notice to the Subsidiary Guarantors under the Senior Note Guarantees and any ~~repurchases~~ Funds Availability Indebtedness Guarantees as provided in the Intercreditor Agreement and until such notice terminates as set forth in the Intercreditor Agreement or has otherwise been rescinded or (ii) after the occurrence and during the continuation of ~~Stock~~ any payment default under any Designated Senior Indebtedness (as such term is defined in the Senior Note Documents as in effect on the Funds Availability Date), no dividend or ~~Stock Equivalents in consideration~~ distribution of ~~such payments including deemed repurchases in connection with~~ any kind may be made pursuant to this Section 6.06 or otherwise, the ~~exercise~~ proceeds of ~~stock options~~which would be used by the Borrower or any Restricted Subsidiary to pay any obligations owing under the Senior Notes, any Funds Availability Indebtedness or any Senior Note Guarantees or Funds Availability Indebtedness Guarantees.

Appears in 3 contracts

Samples: Credit Agreement (Enexus Energy CORP), Credit Agreement (Enexus Energy CORP), Credit Agreement (Entergy Corp /De/)

Limitation on Dividends. ~~The Borrower~~ Neither Holdings, nor the Company will ~~not~~ declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of ~~the~~ any Borrower, now or hereafter outstanding (all of the ~~foregoing,~~ foregoing “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) Holdings or the ~~Borrower~~ Company may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) Holdings or the ~~Borrower~~ Company may (or may ~~pay~~ make dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of ~~the Borrower~~ Holdings and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) (i) the Company may pay dividends to Holdings and (ii) Holdings may pay dividends, up to an amount equal to the proceeds of the Tranche B-2 Term Loans, provided ~~that, so long as~~ that all of the conditions set forth in Section 7.3 are satisfied; (~~other than with respect to clause~~ d) (~~c)(z~~i) ~~below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the ~~Borrower~~ Company may pay dividends on ~~its~~ the Stock or Stock ~~Equivalents~~Equivalents of the Company to Holdings and (ii) Holdings may pay cash dividends up to an amount equal to the Net Cash Proceeds of any Designated Assets Sale and non-cash dividends with any non-cash proceeds of any Designated Assets Sale in the same form received, in each case, if (x) the Consolidated Total Senior Secured Debt to Adjusted EBITDA Ratio for the Test Period last ended, determined on a pro forma basis after giving effect to such Designated Asset Sale and the payment of such dividends, is less than or equal to the Consolidated Total Senior Secured Debt to Adjusted EBITDA Ratio for the Test Period last ended prior to the consummation of such Designated Asset Sale, (y) the Consolidated Total Senior Secured Debt to Adjusted EBITDA Ratio for the Test Period last ended, determined on a pro forma basis after giving effect to such Designated Asset Sale and payment of such dividends, is less than or equal to 1.50 to 1.00 and (z) prior to the payment of such dividends, at least $250,000,000 of the principal amount of the Term Loans shall have been repaid in cash pursuant to the terms hereof; (e) (i) the Company may pay dividends on the Stock or Stock Equivalents of the Company to Holdings and (ii) Holdings may pay dividends, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (ce) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (df) the ~~Borrower~~ Company and its Restricted Subsidiaries may pay ~~dividends~~dividends to Holdings: (i) the proceeds of which will be used to pay ~~income~~ (or to make dividends to allow any direct or indirect parent of Holdings to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns for the relevant jurisdiction of Holdings (or such parent) attributable to Holdings, the Company or its Subsidiaries determined as if the Company and its Subsidiaries filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiariesseparately; (ii) the proceeds of which shall be used by Holdings to pay (or to make dividends to allow any direct or indirect parent of ~~the Borrower~~ Holdings to ~~pay~~ pay) (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year of the Company plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ Holdings (or any parent thereof) attributable to the ownership or operations of the ~~Borrower~~ Company and its ~~Restricted~~ Subsidiaries or (CB) fees and expenses otherwise (x) due and payable by the ~~Borrower~~ Company or any of its ~~Restricted~~ Subsidiaries and (y) permitted to be paid by the ~~Borrower~~ Company or such ~~Restricted~~ Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used by Holdings to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence~~ its (or any of ~~any~~ its direct or indirect ~~parent of the Borrower~~parents’) corporate existence; and (iv) ~~to any direct or indirect parent of the Borrower~~ to finance any Investment permitted to be made ~~by the Borrower or a Restricted Subsidiary~~ pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such ~~Investment,~~ Investment and (B) ~~such parent~~ Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the ~~Borrower~~ Company or ~~such~~ its Restricted ~~Subsidiary~~ Subsidiaries or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the ~~Borrower~~ Company or ~~any of~~ its Restricted Subsidiaries ~~and (C) the Borrower shall comply with Sections 9.11 and 9.12~~ in order to ~~the extent applicable;~~consummate such Permitted Acquisition; and (eg) ~~[Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may~~ (i) the Company may pay ~~cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition~~ to Holdings and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower Holdings may pay ~~any dividend or distribution within 60 days~~ cash dividends, after the ~~date~~ fifth anniversary of ~~declaration thereof~~the Closing Date solely for the purpose of paying scheduled interest payments with respect to Indebtedness of Holdings, if so long as the Company shall be in compliance, on a pro forma basis after giving effect to the payment of such dividends, with the covenant set forth in Section 10.9, as such covenant is recomputed as at the ~~date~~ last day of ~~declaration~~ the most recently ended Test Period under such Section as if the payment ~~would have complied with the provisions~~ of ~~this Agreement; (h) the Borrower may declare and pay~~ such cash dividends had occurred on the ~~Borrower’s common stock following the~~ first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration day of such ~~payments including deemed repurchases in connection with the exercise of stock options~~Test Period.

Appears in 2 contracts

Samples: Credit Agreement (Avago Technologies LTD), Credit Agreement (Avago Technologies Manufacturing (Singapore) Pte. Ltd.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x) of the Original Credit Agreement, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Borrower to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct or indirect~~ for the relevant jurisdiction of such parent of attributable to the Borrower ~~in an amount not to exceed the income tax liability of~~ or its Restricted Subsidiaries determined as if the Borrower and ~~the~~ its Restricted Subsidiaries ~~were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~filed separately; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or ~~any of~~ its Restricted Subsidiaries and (C) ~~the~~ Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) ~~[Reserved];~~the Borrower may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings Debt solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends (i) the Borrower shall be in compliance with the covenant set forth in Section 10.8 for the most recently ended Test Period for which Section 9.1 Financials have been delivered and (ii) the Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or equal to 1.75 to 1.00 for the most recently ended Test Period for which Section 9.1 Financials have been delivered; and (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends ~~in an amount~~ so long as the Consolidated Total Debt to Consolidated EBITDA Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered is less than or equal to ~~withholding or similar Taxes payable or expected~~ 4.25:1.00, determined on a Pro Forma Basis after giving effect to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases in connection with the exercise of stock options~~dividend.

Appears in 2 contracts

Samples: Restatement Agreement (HCA Healthcare, Inc.), Credit Agreement (HCA Holdings, Inc.)

Limitation on Dividends. ~~The~~ Neither Holdings nor the Borrower will ~~not~~ declare or pay any dividends (other than with respect to Holdings, dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of Holdings and with respect to the Borrower, dividends payable solely to Holdings in the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of Holdings (or any direct or indirect parent thereof) or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of the Capital Stock of Holdings (or any direct or indirect parent thereof) or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) each of Holdings and the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock ~~or Stock Equivalents~~ redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred, is continuing or would ~~exist after giving effect thereto~~result therefrom, each of Holdings and the Borrower may ~~pay dividends on its Stock~~ redeem, acquire, retire or ~~Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause~~ repurchase (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay ~~dividends on~~ Dividends to Holdings, the ~~Borrower’s common~~ proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or stock ~~following the first public offering of the Borrower’s common stock or the common stock of~~ appreciation rights issued with respect to any of ~~its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any~~ such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.Capital Stock)

Appears in 2 contracts

Samples: Revolving Credit Agreement (Goodman Global Group, Inc.), Revolving Credit Agreement (Goodman Sales CO)

Limitation on Dividends. ~~The Borrower~~ Holdings will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders in their capacity as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~6.05) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of Holdings or the Canadian Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing,~~ foregoing “dividends”); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto (other than with respect to Sections 6.06(f), (g), (h) and (i)): (a) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock~~ capital stock or ~~Stock Equivalents~~ preferred stock for another class of capital stock or preferred stock (“Retired Capital Stock”), as the case may be, or rights to acquire its (capital stock or ~~such parent’s) Stock or Stock Equivalents~~ preferred stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock~~ shares of its capital stock (other than Permitted Cure Securities) (“Refunding Capital Stock”) or ~~Stock Equivalents~~preferred stock, as the case may be; provided that such ~~new~~ other class of capital stock or preferred stock is not Disqualified Capital Stock ~~or Stock Equivalents contain~~ and contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests (as determined in good faith by the Canadian Borrower) as those contained in the ~~Stock~~ capital stock or ~~Stock Equivalents~~ preferred stock, as the case may be, redeemed thereby, and provided further that such new issuance of capital stock does not increase the Applicable Amount; (b) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its Qualified Capital Stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its Qualified Capital Stock) ~~Stock or Stock Equivalents~~ held by ~~any~~ past, present or ~~former officer~~future officers, ~~director~~ directors and employees of or ~~employee (or their respective Affiliates, estates or immediate family members) of the Borrower~~ consultants to Holdings and its Subsidiaries ~~or any parent thereof~~in an amount, when taken together with Investments made in accordance with Section 6.05(l), does not exceed $15.0 million, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements, employment agreements or ~~any other management or employee benefit plan or agreement~~consulting agreements; (c) ~~provided~~ Holdings may engage in actions otherwise prohibited by this Section 6.06 in an amount that, ~~so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or~~ at the time such dividend is made, would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) ~~the Borrower~~ Holdings may declare and pay ~~dividends: (i~~dividends and/or distributions in accordance with Section 6.12(d) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offeringh); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) ~~[Reserved]~~Holdings may pay dividends and/or make distributions (including repurchases of Qualified Capital Stock) to the holders of preferred Equity Interests to the extent of any cash contribution in Holdings or from the cash proceeds of Qualified Capital Stock (other than Permitted Cure Securities and provided that such new equity does not increase the Applicable Amount); (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and Holdings may make ~~payments on convertible Indebtedness~~ tax distributions in accordance with ~~its terms~~Section 3.7 of the Ancillary Agreement as in effect on the Closing Date not in excess of $2.0 million per calendar year; (g) Holdings may make the ~~Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement~~Planned Distribution; (h) Holdings shall be permitted to redeem or repurchase the ~~Borrower may declare and pay~~ Holdings PIK Securities in connection with the PSP Note Transaction so long as Holdings shall be in pro forma compliance with the Financial Performance Covenant after giving effect to such redemption or repurchase; (i) Holdings shall be permitted to make dividends ~~on the Borrower’s common stock following the first public offering~~ consisting of ~~the Borrower’s common stock~~ Excluded Contributions; and (j) Holdings or the ~~common stock of any of~~ Canadian Borrower, as applicable, may make dividends or distributions to, or repurchase or redeem shares from, its ~~direct or indirect parents after the Original Closing Date, of up~~ equity holders in an amount equal to 66.0% ~~per annum~~ of the net proceeds received by Holdings or ~~contributed~~ the Canadian Borrower, as ~~common equity to the Borrower in or~~ applicable, from any ~~such public offering to the extent such net proceeds are not utilized~~ Qualified IPO in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionscalendar year.

Appears in 2 contracts

Samples: Credit Agreement (Telesat Holdings Inc.), Credit Agreement (Telesat Canada)

Appears in 2 contracts

Samples: Abl Credit Agreement (Dollar General Corp), Abl Credit Agreement (Dollar General Corp)

Appears in 2 contracts

Samples: Credit Agreement (Serena Software Inc), Credit Agreement (Serena Software Inc)

Limitation on Dividends. ~~The Borrower will not declare~~ So long as any share of the Series G Preferred Stock remains outstanding, without the consent of each of the holders of the Series G Preferred Stock, no dividend or ~~pay~~ distribution shall be declared or paid on the Common Stock or any ~~dividends~~ other shares of Junior Stock (other than dividends payable solely in ~~its Qualified Equity Interests~~shares of Common Stock) or ~~return any capital to its stockholders (including any option holders)~~ Parity Stock, and no Common Stock, Junior Stock or ~~make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire~~Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise acquired for ~~consideration,~~ consideration by the Company or any of its subsidiaries. The foregoing limitation shall not apply to (i) a dividend payable on any Junior Stock in shares of any ~~class~~ other Junior Stock, or to the acquisition of ~~its~~ shares of any Junior Stock in exchange for, or through application of the proceeds of the sale of, shares of any other Junior Stock; (ii) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with ~~an Investment permitted by Section 10.5)~~ the administration of any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”): (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business ~~and other corporate overhead costs and expenses~~ (including ~~administrative, legal, accounting~~ purchases to offset the Share Dilution Amount (as defined below) pursuant to a publicly announced repurchase plan) and ~~similar expenses~~ consistent with past practice or to satisfy applicable tax withholdings with respect to employee equity-based compensation; provided ~~by third parties), which are reasonable and customary and incurred~~ that any purchases to offset the Share Dilution Amount shall in no event exceed the ~~ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus~~ Share Dilution Amount; (Biii) any ~~reasonable and customary indemnification claims made by directors~~ dividends or ~~officers~~ distributions of ~~the Borrower (~~rights or Junior Stock in connection with a stockholders’ rights plan or tax asset protection plan or any ~~parent thereof~~redemption or repurchase of rights pursuant to any stockholders’ rights plan or tax asset protection plan; (iv) ~~attributable to~~ the ~~ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable~~ acquisition by the ~~Borrower~~ Company or any of its ~~Restricted Subsidiaries and permitted to be paid by~~ subsidiaries of record ownership in Junior Stock or Parity Stock for the ~~Borrower or such Restricted Subsidiary under this Agreement (including in respect~~ beneficial ownership of any ~~initial public offering);~~ other persons (~~iii)~~ other than the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower Company or any of its ~~Restricted Subsidiaries and~~ subsidiaries), including as trustees or custodians; (Cv) the ~~Borrower shall comply~~ conversion of the Series G Preferred Stock into Common Stock; (vi) the dividend of Warrants contemplated by Section 9.04 of the Transaction Agreement; (vii) the exchange or conversion of (A) Junior Stock for or into other Junior Stock or (B) Parity Stock for or into other Parity Stock (with ~~Sections 9.11 and 9.12~~ the same or lesser aggregate liquidation amount) or Junior Stock, in each case, solely to the extent ~~applicable; (e) [Reserved]; (f)~~ required pursuant to binding contractual agreements entered into prior to the ~~Borrower or any~~ date of the ~~Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend~~Series F Preferred Stock Purchase Agreement for the accelerated exercise, ~~split~~ settlement or ~~combination~~ exchange thereof ~~or any Permitted Acquisition~~ for Common Stock; and (iiviii) ~~honor~~ any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay purchase, redemption or other acquisition or any dividend or distribution ~~within 60 days after~~ with the written consent of the UST. This Section 3(b) shall not be deemed to affect the ability of the Company to redeem, purchase, acquire or exchange its junior subordinated debentures issued by the Company or an Affiliate of the Company. “Share Dilution Amount” means the increase in the number of diluted shares outstanding (determined in accordance with generally accepted accounting principles in the United States, and as measured from the date of ~~declaration thereof, if at~~ the ~~date of declaration such payment would have complied~~ Company’s consolidated financial statements most recently filed with the ~~provisions of this Agreement; (h) the Borrower may declare~~ Securities and ~~pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after~~ Exchange Commission prior to the Original ~~Closing~~ Issue Date) resulting from the grant, vesting or exercise of up equity-based compensation to ~~6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from~~ employees and equitably adjusted for any ~~such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5~~stock split, ~~10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding~~ stock dividend, reverse stock split, reclassification or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionstransaction.

Appears in 2 contracts

Samples: Master Transaction Agreement, Master Transaction Agreement (American International Group Inc)

Limitation on Dividends. ~~The~~ Neither Holdings nor the Borrower will ~~not~~ declare or pay any dividends (other than (a) in respect of Holdings, dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock and (b) in respect of the Borrower, dividends payable solely in its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock~~ shares of any class of the capital stock of Holdings or ~~Stock Equivalents of~~ the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing~~foregoing “Dividends”); provided, ~~“dividends”):~~ that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) each of Holdings and the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of its capital stock; provided, ~~provided~~ that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) ~~the Borrower~~ Holdings may (repurchase or may ~~pay~~ make dividends and distributions to ~~permit any direct or indirect parent thereof to)~~ repurchase shares of capital stock of Holdings or Parent or any of its Subsidiaries (or any options or warrants or stock appreciation rights issued with respect to any of such ~~parent’s~~capital stock) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates~~directors and employees of Parent and its Subsidiaries, ~~estates or immediate family members)~~ with the proceeds of dividends from the Borrower ~~and its Subsidiaries or any parent thereof~~which shall also be permitted, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) ~~provided that~~the Borrower and the Restricted Subsidiaries may make investments permitted by Section 10.5, ~~so long as~~ (~~other than with respect to clause (c)(z~~d) ~~below) no Default or Event of Default exists or would exist after giving effect thereto,~~ Holdings and the Borrower may pay dividends ~~on its Stock~~ or ~~Stock Equivalents~~make distributions; provided, ~~provided~~ that the aggregate amount of ~~all~~ such dividends and distributions (without duplication) paid ~~from the Original Closing Date~~ pursuant to this clause (cd) ~~(other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with~~ shall not at any time exceed the sum of (i) ~~all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ $600,000,000 and (ii) ~~all loans and advances made to any direct or indirect parent of~~ so long as the ~~Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total~~ Senior Secured Debt to Consolidated EBITDA Ratio at such time is equal to or less than ~~7.0~~ 1.50:1.00, 50% of the cumulative amount of Excess Cash Flow for all fiscal years completed after the Closing Date and prior to ~~1.0~~such time (it being understood and agreed that, ~~$200,000,000~~ to the extent that any dividends or distributions are made from the amounts provided for in this sub-clause (~~b) if, on a Pro Forma Basis~~ii), the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus~~ amounts of such dividends or distributions will be deducted from the Available Amount as set forth in clause (ya)(iii)(y)(D) ~~if, on a Pro Forma Basis,~~ of the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus~~ definition thereof) and (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (de) the Borrower and Holdings may declare and pay ~~dividends: (i)~~ dividends and/or make distributions on its capital stock, as applicable, the proceeds of which will be used by Parent solely to pay ~~income tax liability attributable to~~ taxes of Parent, PIK Holdco, Holdings, the Borrower and the ~~Restricted~~ Subsidiaries ~~in respect~~ as part of ~~consolidated, combined, unitary or affiliated~~ a consolidated tax ~~returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone~~ filing group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrativealong with franchise taxes, ~~legal, accounting~~ administrative and similar expenses ~~provided by third parties)~~related to its existence and ownership of PIK Holdco, ~~which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of~~ Holdings, the Borrower, as applicable; provided, that the amount of such dividends does not to exceed ~~$3,500,000~~ in any fiscal year ~~plus~~ the amount of such taxes and administrative and similar expenses payable for such fiscal year (~~B) any reasonable and customary indemnification claims made by directors or officers~~ it being understood that the amount of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such ~~Restricted Subsidiary under this Agreement (including~~ dividends in respect of ~~any initial public offering~~such administrative and similar expenses (but not such taxes) shall in no event exceed $5,000,000 in the aggregate per fiscal year); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 2 contracts

Samples: Credit Agreement (Rockwood Holdings, Inc.), Credit Agreement (Rockwood Holdings, Inc.)

Limitation on Dividends. ~~The Borrower will not declare~~ So long as any share of the Series G Preferred Stock remains outstanding, without the consent of each of the holders of the Series G Preferred Stock, no dividend or ~~pay~~ distribution shall be declared or paid on the Common Stock or any ~~dividends~~ other shares of Junior Stock (other than dividends payable solely in ~~its Qualified Equity Interests~~shares of Common Stock) or ~~return any capital to its stockholders (including any option holders)~~ Parity Stock, and no Common Stock, Junior Stock or ~~make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire~~Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise acquired for ~~consideration,~~ consideration by the Company or any of its subsidiaries. The foregoing limitation shall not apply to: (i) a dividend payable on any Junior Stock in shares of any ~~class~~ other Junior Stock, or to the acquisition of ~~its~~ shares of any Junior Stock in exchange for, or through application of the proceeds of the sale of, shares of any other Junior Stock; (ii) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with ~~an Investment permitted by Section 10.5)~~ the administration of any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”): (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business ~~and other corporate overhead costs and expenses~~ (including ~~administrative, legal, accounting~~ purchases to offset the Share Dilution Amount (as defined below) pursuant to a publicly announced repurchase plan) and ~~similar expenses~~ consistent with past practice or to satisfy applicable tax withholdings with respect to employee equity-based compensation; provided ~~by third parties), which are reasonable and customary and incurred~~ that any purchases to offset the Share Dilution Amount shall in no event exceed the ~~ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus~~ Share Dilution Amount; (Biii) any ~~reasonable and customary indemnification claims made by directors~~ dividends or ~~officers~~ distributions of ~~the Borrower (~~rights or Junior Stock in connection with a stockholders’ rights plan or tax asset protection plan or any ~~parent thereof~~redemption or repurchase of rights pursuant to any stockholders’ rights plan or tax asset protection plan; (iv) ~~attributable to~~ the ~~ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable~~ acquisition by the ~~Borrower~~ Company or any of its ~~Restricted Subsidiaries and permitted to be paid by~~ subsidiaries of record ownership in Junior Stock or Parity Stock for the ~~Borrower or such Restricted Subsidiary under this Agreement (including in respect~~ beneficial ownership of any ~~initial public offering);~~ other persons (~~iii)~~ other than the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower Company or any of its ~~Restricted Subsidiaries and~~ subsidiaries), including as trustees or custodians; (Cv) the ~~Borrower shall comply~~ conversion of the Series G Preferred Stock into Common Stock; (vi) the dividend of Warrants contemplated by Section 9.04 of the Transaction Agreement; (vii) the exchange or conversion of (A) Junior Stock for or into other Junior Stock or (B) Parity Stock for or into other Parity Stock (with ~~Sections 9.11 and 9.12~~ the same or lesser aggregate liquidation amount) or Junior Stock, in each case, solely to the extent ~~applicable; (e) [Reserved]; (f)~~ required pursuant to binding contractual agreements entered into prior to the ~~Borrower or any~~ date of the ~~Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend~~Series F Preferred Stock Purchase Agreement for the accelerated exercise, ~~split~~ settlement or ~~combination~~ exchange thereof ~~or any Permitted Acquisition~~ for Common Stock; and (iiviii) ~~honor~~ any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay purchase, redemption or other acquisition or any dividend or distribution ~~within 60 days after~~ with the written consent of the UST. This Section 3(b) shall not be deemed to affect the ability of the Company to redeem, purchase, acquire or exchange its junior subordinated debentures issued by the Company or an Affiliate of the Company. “Share Dilution Amount” means the increase in the number of diluted shares outstanding (determined in accordance with generally accepted accounting principles in the United States, and as measured from the date of ~~declaration thereof, if at~~ the ~~date of declaration such payment would have complied~~ Company’s consolidated financial statements most recently filed with the ~~provisions of this Agreement; (h) the Borrower may declare~~ Securities and ~~pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after~~ Exchange Commission prior to the Original ~~Closing~~ Issue Date) resulting from the grant, vesting or exercise of up equity-based compensation to ~~6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from~~ employees and equitably adjusted for any ~~such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5~~stock split, ~~10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding~~ stock dividend, reverse stock split, reclassification or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionstransaction.

Appears in 2 contracts

Samples: Purchase Agreement, Purchase Agreement (American International Group Inc)

Limitation on Dividends. The ~~Borrower~~ Company will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the ~~Borrower~~Company, now or hereafter outstanding (all of the ~~foregoing,~~ foregoing “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the ~~Borrower~~ Company may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the ~~Borrower~~ Company may (or may ~~pay~~ make dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the ~~Borrower~~ Company and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the ~~Borrower~~ Company may pay dividends on its Stock or Stock Equivalents (or may make dividends to permit any direct or indirect parent thereof to pay dividends on its Stock or Stock Equivalents), provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) ifthe Additional Basket at such time, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~ii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the ~~Borrower~~ Company may pay dividends: (i) so long as the Company is a member of a group filing a consolidated, combined, unitary or affiliated tax return with a parent, the proceeds of which will be used to pay ~~income~~ (or to make dividends to allow any direct or indirect parent of the Company to pay) within 30 days of the receipt thereof, the tax liability to each relevant jurisdiction in respect of such consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of such parent to the extent such tax liability is directly attributable to the ~~Borrower and~~ taxable income of the ~~Restricted~~ Company or its Subsidiaries (that are included in ~~respect of~~ such consolidated, combined, unitary or affiliated tax ~~returns~~ return), determined as if the Company and such Subsidiaries filed by a ~~direct~~ separate consolidated, combined, unitary or ~~indirect parent of the Borrower in an amount not to exceed the income~~ affiliated tax ~~liability of the Borrower and the Restricted Subsidiaries were they to file~~ return as a stand-alone group~~, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the ~~Borrower~~ Company to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 2,000,000 in any fiscal year of the Company plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the ~~Borrower~~ Company (or any parent thereof) attributable to the ownership or operations of the ~~Borrower~~ Company and its ~~Restricted~~ Subsidiaries or (CB) fees and expenses otherwise (x) due and payable by the ~~Borrower~~ Company or any of its ~~Restricted~~ Subsidiaries and (y) permitted to be paid by the ~~Borrower~~ Company or such ~~Restricted~~ Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain the corporate existence of any of its direct or indirect parent of the ~~Borrower~~Company, within 30 days of the receipt thereof; and (iv) to any direct or indirect parent of the ~~Borrower~~ Company to finance any Investment permitted to be made ~~by the Borrower or a Restricted Subsidiary~~ pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such ~~Investment,~~ Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the ~~Borrower~~ Company or ~~such~~ its Restricted ~~Subsidiary~~ Subsidiaries or (2) the merger ~~(to the extent permitted in Section 10.5)~~ of the Person formed or acquired into the ~~Borrower~~ Company or ~~any of~~ its Restricted ~~Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable;~~Subsidiaries. (e) ~~[Reserved]; (f)~~ the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower Company may pay dividends ~~in an amount equal~~ to ~~withholding or similar Taxes payable or expected~~ Holdings so long as the proceeds thereof are promptly applied to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such fund cash interest payments ~~including deemed repurchases in connection with the exercise of stock options~~on Permitted Holding Company Debt.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (IPC Systems Holdings Corp.), First Lien Credit Agreement (IPC Systems Holdings Corp.)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Parent Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its (or such parent’s) Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Parent Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, ; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x) of the Existing Credit Agreement, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Parent Borrower to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such parent attributable to the Parent Borrower or ~~indirect parent of~~ its Restricted Subsidiaries determined as if the ~~Borrower in an amount not to exceed the income tax liability of the~~ Parent Borrower and ~~the~~ its Restricted Subsidiaries ~~were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~filed separately; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000, in any fiscal year of the Parent Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Parent Borrower; and (iv) to any direct or indirect parent of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or ~~any of~~ its Restricted Subsidiaries and (C) the Parent Borrower shall comply with ~~Sections~~ Section 9.11 ~~and 9.12~~ to the extent applicable; (e) ~~[Reserved];~~the Parent Borrower may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings Debt, solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends, (i) the Parent Borrower shall be in compliance with the covenant set forth in Section 10.8 of the CF Agreement for the most recently ended Test Period for which Section 9.1 Financials have been delivered and (ii) the Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or equal to 1.75 to 1.00 for the most recently ended Test Period for which Section 9.1 Financials have been delivered; and (f) dividends that satisfy the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsPayment Conditions.

Appears in 2 contracts

Samples: Restatement Agreement (HCA Healthcare, Inc.), Credit Agreement (HCA Holdings, Inc.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ capital stock now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the ~~foregoing~~foregoing "Dividends"), ~~“dividends”):~~ provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any capital stock of ~~its Stock or Stock Equivalents~~ the Borrower for another class of ~~its (~~capital stock or ~~such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances~~ rights to acquire capital stock of ~~new Stock or Stock Equivalents~~the Borrower, provided that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its capital stock (and/or options or ~~such parent’s~~warrants in respect thereof) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~its officers, ~~director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower~~ directors and ~~its Subsidiaries or any parent thereof,~~ employees so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements ~~or any other management or employee benefit plan or agreement;~~ and (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on ~~the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of~~ its ~~direct or indirect parents after the Original Closing Date~~capital stock, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and provided that (i) the ~~Borrower may pay~~ aggregate amount of dividends ~~in an amount equal~~ paid pursuant to ~~withholding or similar Taxes payable or expected~~ this clause (c) shall not at any time exceed 50% of Cumulative Consolidated Net Income Available to ~~be payable by~~ Common Stockholders at such time and (ii) at the time of the payment of any ~~present or former employee~~such dividends and after giving effect thereto, ~~director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration~~ the Consolidated Senior Debt to Consolidated EBITDA Ratio on the date of such ~~payments including deemed repurchases in connection with the exercise~~ payment of ~~stock options~~such dividends shall be less than 2.50:1.00.

Appears in 2 contracts

Samples: Credit Agreement (KCLC Acquisition Corp), Credit Agreement (Kindercare Learning Centers Inc /De)

Appears in 2 contracts

Samples: Joinder Agreement (First Data Corp), Credit Agreement (First Data Corp)

Appears in 2 contracts

Samples: Credit Agreement (Dollar General Corp), Credit Agreement (Dollar General Corp)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than ~~dividends~~ Dividends payable solely in its ~~Qualified Equity Interests~~Stock that is not Disqualified Stock) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the ~~Borrower~~Borrower (or any direct or indirect parent thereof), now or hereafter outstanding (all of the foregoing, “~~dividends~~Dividends”):); except that: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents in exchange for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all material respects ~~material~~ to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (i) (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, ~~estates~~ estates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, ~~so long as~~ upon the death, disability, retirement or termination of employment of any such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any equity option or equity appreciation rights plan, ~~management~~ any management, director and/or employee ~~stock plans~~equity ownership, ~~stock~~ benefit or incentive plan or agreement, equity subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, except with respect to repurchases from the Manager and its Affiliates, non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any equity option or equity appreciation rights plan, any management, director and/or employee equity ownership, benefit or incentive plan or agreement~~; (c) provided that~~, ~~so long as (~~equity subscription plan, employment termination agreement or any other ~~than with respect to clause (c)(z) below) no Default~~ employment agreements or ~~Event of Default exists or would exist after giving effect thereto~~equity holders’ agreement, the ~~Borrower may pay dividends on its~~ aggregate amount of all cash paid in respect of all such shares of Stock or Stock ~~Equivalents~~Equivalents so redeemed, ~~provided that~~ acquired, retired or repurchased in any calendar year does not exceed the sum of (A) $497,000 (which shall increase to $993,000 subsequent to the consummation of a Qualifying IPO) plus (B) all net cash proceeds obtained by the Borrower during such calendar year from the sale of such Stock or Stock Equivalents to other present or former officers, consultants, employees, directors and managers in connection with any permitted compensation and incentive arrangements plus (C) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of ~~all such dividends paid from~~ payments in respect of Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the ~~Original Closing Date~~ two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this ~~clause (c~~Section 10.6(b)(i) (~~other than dividends paid pursuant~~ any amount so carried forward shall be deemed to ~~clause (c)(x) below prior to March 31, 2015~~be used last in the subsequent fiscal year)~~, when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ ; and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock ~~options~~options so long as the amount of such payments does not exceed $248,000 in the aggregate; (c) to the extent constituting Dividends, the Borrower may make Investments permitted by Section 10.5; (d) to the extent constituting Dividends, the Borrower may enter into and consummate transactions expressly permitted by any provision of Section 10.3; (e) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) upon exercise of stock options or warrants if such Stock or Stock Equivalents represents all or a portion of the exercise price of such options or warrants; (f) the Borrower may make and pay Dividends to its owners: (i) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $199,000 in any fiscal year plus any actual, reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof); (ii) the proceeds of which shall be used to pay franchise taxes and other fees, taxes and expenses required to maintain any of its direct or indirect parents’corporate existence; (iii) the proceeds of which shall be used by such parents to pay Dividends contemplated by Section 10.6(b); (iv) the proceeds of which shall be used to make Dividends to allow any direct or indirect parent thereof to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity issuance or offering or debt issuance, incurrence or offering, Disposition or acquisition or investment transaction permitted by this Agreement; and (v) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of any direct or indirect parent thereof, to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Subsidiaries; (g) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) so long as, after giving Pro Forma Effect thereto, (A) no Default or Event of Default shall have occurred and be continuing and (B) no Borrowing Base Deficiency exists, honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (h) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (i) the Borrower may make and pay Dividends in respect of taxes of its direct and indirect owners, at the times and in the amounts set forth in Section 7.6 of the Partnership Agreement; (j) so long as, after giving Pro Forma Effect thereto, together with any concurrent Dividends being paid under Sections 10.6(j) and (k), (i) no Default or Event of Default shall have occurred and be continuing, (ii) Liquidity is not less than 5% of the then effective Borrowing Base and (on a Pro Forma Basis after giving effect to such Investment) and (iii) on a Pro Forma Basis after giving effect to such Dividend, the Consolidated Total Debt to Consolidated EBITDAX Ratio shall be less than or equal to 3.75 to 1.00, the Borrower may declare and pay additional Dividends without limit in cash to the holders of its Stock and Stock Equivalents; (k) in addition to the foregoing Dividends and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and after giving effect to the making of any such Dividend, together with any concurrent Dividends being paid under Sections 10.6(i)(ii) and (j), the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants as such covenants are re-computed as of the last day of the most recently ended Test Period as if (i) such Dividend had been paid on the first day of such Test Period and (ii) the amount of any Specified Equity Contribution made during such Test Period were not made to the extent (A) the amount of the Applicable Equity Amount after making the proposed Dividend is less than or equal to the amount of such Specified Equity Contributions and (B) such Specified Equity Contribution was necessary for the Borrower to be in compliance on a Pro Forma Basis with the Financial Performance Covenants, the Borrower may declare and pay Dividends in an aggregate amount not to exceed the Applicable Equity Amount at the time such Dividend is paid; and (l) the Borrower may make payments described in Sections 9.9(a), (e), (f), (g), (i) and (k) (subject to the conditions set out therein).

Appears in 2 contracts

Samples: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)

Limitation on Dividends. ~~The~~ No Borrower ~~will not~~ shall, or shall permit any of its ----------------------- Subsidiaries to (a) if a corporation, declare or pay any ~~dividends~~ dividend (other than dividends payable solely in common stock of such Borrower or its ~~Qualified Equity Interests~~Subsidiaries) ~~or return any capital to its stockholders (including any option holders)~~ on, or make any ~~other distribution,~~ payment ~~or delivery of property or cash to its stockholders as such~~on account of, or ~~redeem~~set apart assets for a sinking or other analogous fund for, ~~retire~~the purchase, ~~purchase~~ redemption, defeasance, retirement or ~~otherwise acquire, directly or indirectly, for consideration~~other acquisition of, any shares of any class of Capital Stock of such Borrower or its ~~Stock~~ Subsidiaries or ~~Stock Equivalents~~ any warrants or ~~the Stock or Stock Equivalents of~~ options to purchase any ~~direct or indirect parent~~ such Capital Stock, whether now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”): (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and ~~provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby;~~ (b) ~~the Borrower may (~~if a partnership or ~~may pay dividends to permit~~ a limited liability company, make any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than distribution with respect to ~~clause~~ the ownership interests therein, or, in either case, any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrowers or any Subsidiary (~~c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto~~such declarations, ~~the Borrower may pay dividends on its Stock or Stock Equivalents~~payments, ~~provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31~~setting apart, ~~2015~~purchases, redemptions, defeasance, retirements, acquisitions and distributions being herein called "Restricted Payments"), ~~when aggregated with (i) all aggregate principal amounts paid pursuant~~ except for Restricted ------------------- Payments by Entravision to ~~Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ its members, and ~~(ii) all loans~~ by each corporate Borrower to its shareholders, in each case to permit such members and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used shareholders to pay their respective income tax ~~liability~~ liabilities attributable to the ~~Borrower and the Restricted Subsidiaries in respect~~ income of ~~consolidated, combined, unitary~~ Entravision or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, ~~not to exceed $3,500,000 in any fiscal year plus~~ respectively (~~B) any reasonable~~ provided that no Default has occurred and ~~customary indemnification claims made by directors~~ -------- ---- is continuing or ~~officers~~ would result from the making of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted ~~Subsidiary under this Agreement (including in respect of any initial public offering~~Payment); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 2 contracts

Samples: Credit Agreement (Entravision Communications Corp), Credit Agreement (Entravision Communications Corp)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (i) all aggregate principal amounts paid pursuant to Section ~~10.7(a)(y)(i~~10.7(a) from the ~~2014 July Repricing Effective~~ Original Closing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~x) if$400,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0payment of such dividend, the Applicable ~~Amount plus (z) the Applicable Equity Amount at such time~~Amount; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable;. (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options; Notwithstanding anything to the contrary contained in this Section 10 (including Section 10.5 and this Section 10.6), the Borrower will not, and will not permit any of its Restricted Subsidiaries to, pay any cash dividend or make any cash distribution on or in respect of the Borrower’s Stock or Stock Equivalents or purchase or otherwise acquire for cash any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower, for the purpose of paying any cash dividend or making any cash distribution to, or acquiring any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower for cash from the Sponsor, or guarantee any Indebtedness of any Affiliate of the Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Stock or Stock Equivalents to or from the Sponsor, in each case by means of utilization of the cumulative dividend and investment credit provided by the use of the Applicable Amount or the exceptions provided by Sections 10.5(i), (m) and (v), Sections 10.6(c) and (g) and Section 10.7(a), unless at the time and after giving effect to such payment, the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 7.5 to 1.0.

Appears in 2 contracts

Samples: Credit Agreement (First Data Corp), Credit Agreement (First Data Corp)

Limitation on Dividends. ~~The~~ None of Holdings, the Borrower or the Canadian Borrower will ~~not~~ declare or pay any dividends (other ~~than~~ than, (a) in respect of Holdings, dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock and (b) in respect of the Borrower, dividends payable solely in its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock~~ shares of any class of the capital stock of Holdings or ~~Stock Equivalents of~~ the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~ provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) Holdings or the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of its capital stock, provided that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) Holdings or the Borrower may (or may pay ~~dividends~~ Dividends to ~~permit any direct or indirect parent thereof to)~~ Parent to repurchase shares of its or Parent’s capital stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its or Parent’s capital stock) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates~~directors and employees of Parent, ~~estates or immediate family members)~~ Holdings and its Subsidiaries, with the proceeds of dividends from, seriatim, the Borrower and ~~its Subsidiaries or any parent thereof~~Holdings, as applicable, which shall also be permitted, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower and the Restricted Subsidiaries may make investments permitted by Section 10.5, (d) Holdings may declare and pay dividends on its ~~Stock or Stock Equivalents~~capital stock, with the proceeds of dividends from, seriatim, the Borrower, which shall also be permitted, provided that (i) the aggregate amount of ~~all~~ such dividends paid ~~from the Original Closing Date~~ by Holdings pursuant to this clause (cd) ~~(other than~~ shall not at any time exceed 50% of Cumulative Consolidated Net Income Available to Stockholders at such time less the amount of dividends previously paid pursuant to this clause (~~c)(x~~d) ~~below prior~~ following the last day of the most recent fiscal quarter for which Section 9.1 Financials have been delivered to ~~March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to~~ the Lenders under Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 9.1 and (ii) ~~all loans and advances made to any direct or indirect parent~~ at the time of the ~~Borrower pursuant to Section 10.5(m) in lieu~~ payment of any such dividends ~~permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis~~and after giving effect thereto, the Consolidated Total Debt to Consolidated EBITDA Ratio is on the date of such payment of such dividends shall be less than ~~7.0 to 1.0, $200,000,000 or~~ 3.50:1.00 and (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (de) the Borrower and Holdings may declare and pay ~~dividends: (i)~~ dividends and/or make distributions on its capital stock, as applicable, the proceeds of which will be used by Parent or Holdings solely to pay ~~income tax liability attributable to~~ taxes of Parent, Holdings, the Borrower and the ~~Restricted~~ Subsidiaries ~~in respect~~ as part of ~~consolidated~~a consolidated tax filing group for U.S. federal, ~~combined~~state or local tax purposes, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone groupalong with franchise taxes, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting administrative and similar expenses ~~provided by third parties), which are reasonable~~ related to its existence and ~~customary and incurred in the ordinary course of business and attributable to the~~ ownership ~~or operations~~ of the Borrower, as applicable, provided that the amount of such dividends does not to exceed ~~$3,500,000~~ in any fiscal year ~~plus (B) any reasonable and customary indemnification claims made by directors or officers~~ the amount of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such ~~Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees,~~ taxes and expenses ~~required to maintain~~ payable for such fiscal year (it being understood that such expenses shall in no event exceed $1,000,000 in the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% aggregate per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsfiscal year).

Appears in 2 contracts

Samples: Credit Agreement (Sealy Mattress CORP), Credit Agreement (Sealy Corp)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) so long as no Default or Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or ~~may pay dividends to permit any direct or indirect parent thereof to~~repurchase) ~~repurchase~~ shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~parent’s~~Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or ~~Stock Equivalents~~ any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by any present or former ~~officer~~employees, ~~director~~ directors, officers, managers, members of management, independent contractors or ~~employee~~ consultants (or their respective ~~Affiliates, estates~~ Immediate Family Members or ~~immediate family members~~permitted transferees) of any Parent Entity of the Borrower, the Borrower and ~~its Subsidiaries~~ the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any ~~parent thereof, so long as~~ such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any stock option or stock appreciation or similar rights plan, ~~management~~ any management, director and/or employee stock ~~plans~~ownership or incentive plan, stock subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee ~~benefit plan~~ stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or the Borrower during such calendar year from the sale of such Capital Stock to any present or former employees, directors, officers, managers, members of management, independent contractors or consultants (or their respective Immediate Family Members or permitted transferees) in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); (ci) ~~provided that, so long as (other than with respect~~ to ~~clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto~~the extent constituting Dividends, the Borrower and any Restricted Subsidiary may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to make Investments permitted by Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 10.5 and (ii) ~~all loans and advances made~~ each Restricted Subsidiary may make Dividends to ~~any direct or indirect parent of~~ the Borrower ~~pursuant~~ and to ~~Section 10.5(m)~~ Restricted Subsidiaries (and, in ~~lieu~~ the case of ~~dividends permitted~~ a Dividend by ~~this clause (c) shall not exceed an amount equal~~ a non-wholly owned Restricted Subsidiary, to ~~(x)(a) if,~~ the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(ctheir relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed or acquired into~~ Borrower and its Restricted Subsidiaries; (vii) the proceeds of which shall be distributed in connection with the Transactions; (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) after the Fourth Amendment Effective Date measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) so long as no Event of Default has occurred and is continuing or ~~any~~ would result therefrom, an amount equal to the Remaining Dividends Amount at the time such Dividend is paid, plus (ii) so long as no Event of ~~its Restricted Subsidiaries~~ Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid, plus (Ciii) an amount equal to the Available Equity Amount at the time such Dividend is paid, plus (iv) an amount equal to the Specified Dividend Amount; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.75:1.00; (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or ~~immediate family members~~Immediate Family Members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 2 contracts

Samples: Ninth Amendment (LPL Financial Holdings Inc.), Eighth Amendment (LPL Financial Holdings Inc.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent of the Borrower now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock) (all of the ~~foregoing~~foregoing "DIVIDENDS"), ~~“dividends”):~~ PROVIDED that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any capital stock of ~~its Stock or Stock Equivalents~~ the Borrower (i) for the Replacement Preferred Stock, (ii) for another class of ~~its~~ capital stock or rights to acquire capital stock of the Borrower or (~~or such parent’s~~iii) ~~Stock or Stock Equivalents or~~ with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of capital stock, ~~provided~~ PROVIDED that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock (other than any Replacement Preferred Stock) contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its capital stock (and/or options or ~~such parent’s~~warrants in respect thereof) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~its officers, ~~director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower~~ directors and ~~its Subsidiaries or any parent thereof,~~ employees so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may make investments permitted by Section 10.5, (d) the Borrower may declare and pay dividends on its ~~Stock or Stock Equivalents~~capital stock, ~~provided~~ PROVIDED that (i) the aggregate amount of ~~all such~~ dividends paid ~~from the Original Closing Date~~ pursuant to this clause (cd) ~~(other than~~ shall not at any time exceed 50% of Cumulative Consolidated Net Income Available to Stockholders at such time less the amount of dividends previously paid pursuant to this clause (~~c)(x~~d) ~~below prior~~ following the last day of the most recent fiscal quarter for which Section 9.1 Financials have been delivered to ~~March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to~~ the Lenders under Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 9.1 and (ii) ~~all loans and advances made to any direct or indirect parent~~ at the time of the ~~Borrower pursuant to Section 10.5(m) in lieu~~ payment of any such dividends ~~permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis~~and after giving effect thereto, the Consolidated Total Debt to Consolidated EBITDA Ratio ~~is less than 7.0 to 1.0, $200,000,000 or (b) if,~~ on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of ~~declaration thereof, if at the date of declaration~~ such payment ~~would have complied with the provisions~~ of ~~this Agreement;~~ such dividends shall be less than 4.00:1.00 and (he) the Borrower may declare and pay dividends and/or make distributions on its capital stock, the ~~Borrower’s common stock following~~ proceeds of which will be used by CCPC solely to pay taxes of CCPC, the ~~first public offering~~ Borrower and its Subsidiaries as part of a consolidated tax filing group, along with franchise taxes, administrative and similar expenses related to its existence and ownership of the Borrower~~’s common stock or~~ , PROVIDED that the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases~~ dividends does not exceed in ~~connection with~~ any fiscal year the ~~exercise~~ amount of ~~stock options~~such taxes and expenses payable for such fiscal year.

Appears in 2 contracts

Samples: Credit Agreement (Corning Consumer Products Co), Credit Agreement (Wki Holding Co Inc)

Limitation on Dividends. ~~The Borrower~~ Holdings will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders in their capacity as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~6.05) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of Holdings, Initial Canadian Borrower or the Canadian Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing,~~ foregoing “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock~~ capital stock or ~~Stock Equivalents~~ preferred stock for another class of capital stock or preferred stock, as the case may be, or rights to acquire its (capital stock or ~~such parent’s) Stock or Stock Equivalents~~ preferred stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock~~ shares of its capital stock (other than Permitted Cure Securities or ~~Stock Equivalents~~the Equity Financing) or preferred stock, as the case may be, provided that such ~~new~~ other class of capital stock or preferred stock is not Disqualified Capital Stock ~~or Stock Equivalents contain~~ and contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock~~ capital stock or ~~Stock Equivalents~~ preferred stock, as the case may be, redeemed thereby, and provided further that such new issuance of capital stock does not increase the Applicable Amount; (b) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its Qualified Capital Stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its Qualified Capital Stock) ~~Stock or Stock Equivalents~~ held by ~~any~~ past, present or ~~former officer~~future officers, ~~director~~ directors and employees of or ~~employee (or their respective Affiliates, estates or immediate family members) of the Borrower~~ consultants to Holdings and its Subsidiaries ~~or any parent thereof~~in an amount, when taken together with Investments made in accordance with Section 6.05(l), does not exceed $15.0 million, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements, employment agreements or ~~any other management or employee benefit plan or agreement~~consulting agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower~~ Holdings may ~~pay dividends on its Stock or Stock Equivalents~~engage in actions otherwise prohibited by this Section 6.06, provided that the amount of payments made therein under all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall actions does not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) ~~the Borrower~~ Holdings may declare and pay ~~dividends: (i~~dividends and/or distributions in accordance with Section 6.12(d) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offeringh); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) ~~[Reserved];~~Holdings may pay dividends and/or make distributions (including repurchases of Qualified Capital Stock) (a) to the holders of preferred Equity Interests to the extent of any cash contribution in Holdings or from the cash proceeds of Qualified Capital Stock (other than Permitted Cure Securities or the Equity Financing and provided that such new equity does not increase the Applicable Amount), and (b) to the holders of Holdings PIK Securities to the extent permitted by the first sentence of Section 6.07(c); and (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and Holdings may make ~~payments on convertible Indebtedness~~ tax distributions in accordance with ~~its terms; (g)~~ Section 3.7 of the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends Ancillary Agreement as in effect on the ~~Borrower’s common stock following the first public offering~~ Closing Date not in excess of ~~the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6%~~ $2.0 million per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionscalendar year.

Appears in 2 contracts

Samples: Senior Bridge Loan Agreement (Loral Space & Communications Inc.), Senior Subordinated Bridge Loan Agreement (Loral Space & Communications Inc.)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than ~~dividends~~ Dividends payable solely in its ~~Qualified Equity Interests~~Stock that is not Disqualified Stock) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the ~~Borrower~~Borrower (or any direct or indirect parent thereof), now or hereafter outstanding (all of the foregoing, “~~dividends~~Dividends”):); except that: (a) the Borrower may (or may pay ~~dividends~~ Dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents in exchange for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all material respects ~~material~~ to their interests as those contained in the Stock or Stock Equivalents redeemed thereby, and the Borrower may pay Dividends payable solely in the Stock and Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of the Borrower; (b) the Borrower may (i) (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, ~~estates~~ estates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, ~~so long as~~ upon the death, disability, retirement or termination of employment of any such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any equity option or equity appreciation rights plan, ~~management~~ any management, director and/or employee ~~stock plans~~equity ownership, ~~stock~~ benefit or incentive plan or agreement, equity subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any equity option or equity appreciation rights plan, any management, director and/or employee equity ownership, 715000788 12406500715000788 12406500 benefit or incentive plan or agreement~~; (c) provided that~~, ~~so long as (~~equity subscription plan, employment termination agreement or any other ~~than with respect to clause (c)(z) below) no Default~~ employment agreements or ~~Event of Default exists or would exist after giving effect thereto~~equity holders’ agreement, the ~~Borrower may pay dividends on its~~ aggregate amount of all cash paid in respect of all such shares of Stock or Stock ~~Equivalents~~Equivalents so redeemed, ~~provided that~~ acquired, retired or repurchased in any calendar year does not exceed the sum of (A) $50,000,000 (which shall increase to $100,000,000 subsequent to the consummation of Qualifying IPO) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $75,000,000 in any calendar year (which shall increase to $150,000,000 subsequent to the consummation of a Qualifying IPO) plus (B) all net cash proceeds obtained by the Borrower during such calendar year from the sale of such Stock or Stock Equivalents to other present or former officers, consultants, employees, directors and managers in connection with any permitted compensation and incentive arrangements plus (C) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of ~~all such dividends paid from~~ payments in respect of Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the ~~Original Closing Date~~ two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b)(i) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year);(together with any amount paid under clause (cii) ~~(other than dividends paid pursuant to clause (c)(x~~immediately below) ~~below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ exceed $5,000,000 and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock ~~options.~~options so long as the amount of such payments does not exceed $25,000,000(together with any amount paid under clause (i) immediately above) exceed $5,000,000 in the aggregate; (c) to the extent constituting Dividends, the Borrower may make Investments permitted by Section 10.5; (d) to the extent constituting Dividends, the Borrower may enter into and consummate transactions expressly permitted by any provision of Section 10.3; (e) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) upon exercise of stock options or warrants if such Stock or Stock Equivalents represents all or a portion of the exercise price of such options or warrants and such Stock or Stock Equivalents are repurchased with Stock (and not, for the avoidance of doubt, with cash); (f) the Borrower may make and pay Dividends to Holdings or any other direct or indirect parent entity of the Borrower: (i) the proceeds of which will be used to pay (or to make Dividends to allow Holdings or any other direct or indirect parent of the Borrower to pay): (A) franchise and excise taxes, and other fees and expenses, required to maintain its organizational existence, and (B) Taxes of a consolidated, combined, affiliated or unitary group that includes any of the Borrower or its Subsidiaries, to the extent such Taxes are attributable to the Borrower or its Restricted Subsidiaries or, to the extent attributable to its Unrestricted Subsidiaries, to the extent of the amount actually received from its Unrestricted Subsidiaries, provided that in each case, the amount of such payments in any fiscal year does not exceed the amount that the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) would have been required to pay in respect of such foreign, federal, state or local taxes for such fiscal year had the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) been a stand-alone taxpayer (separate from Holdings or any other direct or indirect parent company of the Borrower) for all fiscal years ending after the Closing Date; 715000788 12406500715000788 12406500 (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $25,000,000 in any fiscal year plus any actual, reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof);

Appears in 2 contracts

Samples: Fifth Amendment and Waiver Agreement (Samson Resources Corp), Fifth Amendment and Waiver Agreement (Samson Resources Corp)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x) of the Original Credit Agreement, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Borrower to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct or indirect~~ for the relevant jurisdiction of such parent of attributable to the Borrower ~~in an amount not to exceed the income tax liability of~~ or its Restricted Subsidiaries determined as if the Borrower and ~~the~~ its Restricted Subsidiaries ~~were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~filed separately; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent ~~permitted~~ permittednot prohibited in Section 10.5) of the Person formed or acquired into the Borrower or ~~any of~~ its Restricted Subsidiaries and (C) ~~the~~ Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) ~~[Reserved];~~the Borrower may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings Debt solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends (i) the Borrower shall be in compliance with the covenant set forth in Section 10.8 for the most recently ended Test Period for which Section 9.1 Financials have been delivered and (ii) the Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or equal to 1.75 to 1.00 for the most recently ended Test Period for which Section 9.1 Financials have been delivered; and (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends ~~in an amount~~ so long as the Consolidated Total Debt to Consolidated EBITDA Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered is less than or equal to ~~withholding or similar Taxes payable or expected~~ 4.25:1.00, determined on a Pro Forma Basis after giving effect to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases in connection with the exercise of stock options~~dividend.

Appears in 2 contracts

Samples: Joinder Agreement (HCA Healthcare, Inc.), Joinder Agreement (HCA Healthcare, Inc.)

Limitation on Dividends. ~~The~~ Neither Holdings nor the US Borrower will ~~not~~ declare or pay any dividends (other ~~than~~ than, (a) in respect of Holdings, dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock and (b) in respect of the US Borrower, dividends payable solely in its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of Holdings or the US Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing~~foregoing “Dividends”); provided, ~~“dividends”):~~ that, so long as no Default or Event of Default exists or would exist after giving effect thereto subject to the last sentence of this Section, (a) each of Holdings and the US Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of its capital stock; provided, ~~provided~~ that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its capital stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its capital stock) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of ~~the Borrower~~ Parent and its ~~Subsidiaries or any parent thereof~~Subsidiaries, with the proceeds of dividends from the US Borrower which shall also be permitted, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) ~~provided that~~the US Borrower and the Restricted Subsidiaries may make investments permitted by Section 10.5, ~~so long as~~ (~~other than with respect to clause (c)(z~~d) ~~below) no Default or Event~~ each of ~~Default exists or would exist after giving effect thereto,~~ Holdings and the US Borrower may pay dividends ~~on its Stock or Stock Equivalents~~to, ~~provided~~ seriatim, Holdings and any Parent Company; provided, that (i) the aggregate amount of ~~all~~ such dividends (without duplication) paid ~~from the Original Closing Date~~ pursuant to this clause (cd) ~~(other than~~ shall not at any time exceed 50% of Cumulative Consolidated Net Income Available to Stockholders at such time less the amount of dividends previously paid pursuant to this clause (~~c)(x~~d) ~~below prior~~ following the last day of the most recent fiscal quarter for which Section 9.1 Financials have been delivered to ~~March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to~~ the Lenders under Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 9.1 and (ii) ~~all loans and advances made to any direct or indirect parent~~ at the time of the ~~Borrower pursuant to Section 10.5(m) in lieu~~ payment of any such dividends ~~permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis~~and after giving effect thereto, the Consolidated Total Debt to Consolidated EBITDA Ratio is on the date of such payment of such dividends shall be less than ~~7.0~~ 3.50:1.00, (e) each of the US Borrower and Holdings may declare and pay dividends and/or make distributions on its capital stock, as applicable, the proceeds of which will be used by Parent solely to ~~1.0~~pay taxes of Parent, PIK Holdco, Holdings, the US Borrower and the Subsidiaries as part of a consolidated tax filing group, along with franchise taxes, administrative and similar expenses related to its existence and ownership of PIK Holdco, Holdings, the US Borrower, as applicable; provided, that the amount of such dividends does not exceed in any fiscal year the amount of such taxes and expenses payable for such fiscal year (it being understood that such expenses shall in no event exceed $~~200,000,000~~ 5,000,000 in the aggregate per fiscal year, except that such expenses may exceed $5,000,000 in fiscal year 2007; provided, that such expenses for the period from the Fourth Amendment Effective Date to December 31, 2007 shall in no event exceed $5,000,000 in the aggregate), (f) the US Borrower may declare and pay dividends and/or make distributions on its capital stock, the proceeds of which will be used by Holdings on and after August 15, 2007 solely to pay cash interest, if any, of the 2011 Senior Notes as and to the extent that payment of such interest in cash is required by the 2011 Senior Notes Indenture, (g) the US Borrower and Holdings may declare and pay dividends and/or make distributions on its capital stock, as applicable, from Available Excess Cash Flow, the proceeds of which will be used by Holdings and PIK Holdco solely to redeem, repurchase or retire 2011 Senior Notes, PIK Notes, PIK Refinancing Preferred Stock or PIK Refinancing Indebtedness if (bx) ~~if, on a Pro Forma Basis,~~ at the time of the payment of such dividends and after giving effect thereto the Consolidated Total Debt to Consolidated EBITDA Ratio ~~is greater~~ on the date of such payment of such dividends shall be less than ~~7.0~~ 2.25 to ~~1.0, $0 plus~~ 1.00 and (y) ifthe US Borrower applies an amount equal to the proceeds used for such redemption, repurchase or retirement of 2011 Senior Notes, PIK Notes, PIK Refinancing Preferred Stock or PIK Refinancing Indebtedness to prepay Term Loans outstanding hereunder in accordance with Section 5.1 hereof on ~~a Pro Forma Basis~~the date of any such redemption, repurchase or retirement of 2011 Senior Notes, PIK Notes, PIK Refinancing Preferred Stock or PIK Refinancing Indebtedness (except to the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is~~ extent that the US Borrower has already applied not less than ~~7.0 to 1.0,~~ 50.0% of the ~~Applicable Amount plus (z)~~ cumulative amount of Excess Cash Flow for all fiscal years completed after the ~~Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on~~ Closing Date and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable prior to the ~~Borrower and the Restricted Subsidiaries in respect~~ date of ~~consolidated~~such redemption, ~~combined~~repurchase or retirement of 2011 Senior Notes, ~~unitary~~ PIK Notes, PIK Refinancing Preferred Stock or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary PIK Refinancing Indebtedness pursuant to Section ~~10.5; provided that (A~~5.1 or Section 5.2 hereof) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) ~~the Borrower~~ Holdings may issue PIK Refinancing Indebtedness or PIK Refinancing Preferred Stock in exchange for, or declare and pay dividends and/or make distributions on its capital stock from the ~~Borrower’s common stock following the first public offering~~ proceeds of the ~~Borrower’s common stock or the common stock~~ issuance by Holdings of any ~~of its direct~~ PIK Refinancing Indebtedness or ~~indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering~~ PIK Refinancing Preferred Stock to the extent such ~~net~~ proceeds are ~~not~~ utilized by PIK Holdco substantially simultaneously with such issuance to redeem, repurchase or retire, PIK Notes or Permitted Additional PIK Notes of PIK Holdco that are being refinanced or replaced by such PIK Refinancing Indebtedness or PIK Refinancing Preferred Stock. Notwithstanding anything contained in ~~connection with other transactions~~ this Section 10.6 to the contrary, on and after the Restatement Date until after the first anniversary of the Restatement Date, neither Holdings nor the US Borrower will be permitted to declare or pay any Dividends that would otherwise be permitted by ~~Section 10.5, 10.6 or 10.7; and~~ subsections (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family membersd) and ~~any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options~~(g) described above.

Appears in 2 contracts

Samples: Credit Agreement (Rockwood Specialties Group Inc), Credit Agreement (Rockwood Holdings, Inc.)

Limitation on Dividends. ~~The~~ Neither Holdings nor the Borrower will ~~not~~ declare or pay any dividends (other than with respect to Holdings, dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of Holdings, and with respect to the Borrower, dividends payable solely to Holdings in the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~9.5) any shares of any class of the Capital Stock of Holdings (or any direct or indirect parent thereof) or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of the Capital Stock of Holdings (or any direct or indirect parent thereof) or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) each of Holdings and the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock ~~or Stock Equivalents~~ redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Goodman Global Group, Inc.), Term Loan Credit Agreement (Goodman Sales CO)

Appears in 2 contracts

Samples: Credit Agreement (Kinder Morgan Holdco LLC), Credit Agreement (Kinder Morgan Inc)

Limitation on Dividends. The ~~Borrower~~ Parent will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified~~ Equity Interests) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ Equity Interests or the ~~Stock or Stock Equivalents~~ Equity Interests of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of ~~the~~ its Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~10.05) any ~~Stock or Stock Equivalents~~ Equity Interests of the ~~Borrower~~Parent, now or hereafter outstanding (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the ~~Borrower~~ Parent may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ Equity Interests for another class of its ~~(or such parent’s) Stock or Stock Equivalents~~ Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~Equity Interests, provided that such new ~~Stock or Stock Equivalents~~ Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ Equity Interests redeemed thereby; (b) the ~~Borrower~~ Parent may (or may ~~pay dividends~~ make Dividends to permit any direct or indirect parent thereof to) (i) repurchase shares of its (or such parent’s) ~~Stock or Stock Equivalents~~ Equity Interests held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the ~~Borrower~~ Parent and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements to the extent permitted under Section 10.05(k); and (ii) repurchase, redeem or otherwise acquire or retire for value Equity Interests in lieu of withholding Taxes in connection with any exercise, vesting, settlement or exchange, as applicable, of stock options, warrants, restricted stock, restricted stock units or other similar rights; provided that cancellation of Indebtedness owing to the Parent from members of management of the Parent, any of the Parent’s direct or indirect parent companies or any of the Parent’s Restricted Subsidiaries in connection with a repurchase, redemption or other acquisition or retirement of Equity Interests of any of the Parent’s direct or indirect parent companies will not be deemed to constitute a Dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that, so long as (other than~~ the Parent may pay Dividends with respect to ~~clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on~~ its ~~Stock or Stock Equivalents~~Equity Interests, provided that (x) the amount of ~~all~~ any such ~~dividends paid from the Original Closing Date~~ Dividends pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to the Available Amount at such time and (~~x)(a~~y) ~~if,~~ the Senior Secured Leverage Ratio shall be less than 3.25:1.00 on a Pro Forma ~~Basis, the Consolidated Total Debt~~ Basis (after giving effect to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(cDividend); (d) the ~~Borrower~~ Parent may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower Dividends on its common stock in an amount per share not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6exceeding 6.0% per annum of the ~~net proceeds received by or contributed~~ QIPO Price per share, so long as ~~common equity~~ the Consolidated Interest Coverage Ratio shall not be less than 2.00:1.00 on a Pro Forma Basis (after giving effect to ~~the Borrower in or from any~~ such ~~public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7~~distribution); and (ie) the ~~Borrower~~ Parent may declare and pay regularly scheduled or accumulated cash Dividends to the holders of the Preferred Stock on a quarterly basis at a rate equal to 6.50% per annum; and (f) (e) to the extent not covered by the foregoing subclauses (a) through (de), the Parent may pay ~~dividends~~ Dividends with respect to its Equity Interests in an amount ~~equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant~~ not exceeding the greater of (~~or their respective Affiliates, estates or immediate family members~~i) $50,000,000 and ~~any repurchases~~ (ii) 1.5% of ~~Stock or Stock Equivalents in consideration~~ Consolidated Total Assets as at the date of such ~~payments including deemed repurchases in connection with the exercise of stock options~~Dividend.

Appears in 1 contract

Samples: Term Loan Credit Agreement (MRC Global Inc.)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent ~~now~~ outstanding as of the Original Closing Date or ~~hereafter~~ thereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Parent Borrower, ~~now~~ outstanding as of the Original Closing Date or ~~hereafter~~ thereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its (or such parent’s) Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents~~Equivalents (other than any amount received by the Parent Borrower in satisfaction of the requirements of the first sentence of Section 10.7(d)), provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Parent Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Fxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x), the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Parent Borrower to pay) (A) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns for the relevant jurisdiction of such parent attributable to the Parent Borrower or its Restricted Subsidiaries determined as if the Parent Borrower and its Restricted Subsidiaries filed by separately and (B) for as long as Holdings is a direct or indirect parent of the Parent Borrower, distributions equal to any taxable income of Holdings resulting from the hedging arrangements entered into by Holdings on or about September 13, 2006 and with respect to which the Parent Borrower ~~in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as~~ will be a ~~stand-alone group, reduced~~ counterparty multiplied by ~~any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~45%; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Parent Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any of its direct or indirect parent of the Parent Borrower~~; and~~; (iv) to any direct or indirect parent of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or ~~any of~~ its Restricted Subsidiaries and (C) the Parent Borrower shall comply with ~~Sections~~ Section 9.11 ~~and 9.12~~ to the extent applicable;; and (e) ~~[Reserved]; (f)~~ the Parent Borrower ~~or any~~ may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the ~~Restricted Subsidiaries may~~ date of issuance of any Qualified Holdings Debt, solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends, (i) ~~pay cash~~ the Parent Borrower shall be in ~~lieu~~ compliance with the covenant set forth in Section 10.9 of ~~fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition~~ the CF Agreement for the most recently ended Test Period and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the ~~Borrower may pay any dividend~~ Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to ~~withholding or similar Taxes payable or expected~~ 1.75 to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with 1.00 for the ~~exercise of stock options~~most recently ended Test Period.

Appears in 1 contract

Samples: Credit Agreement (Hca Inc/Tn)

Limitation on Dividends. ~~The~~ Neither Holdings nor the Borrower will ~~not~~ declare or pay any dividends (other than (a) in respect of Holdings, dividends payable solely in respect of its ~~Qualified Equity Interests~~Capital Stock and (b) in respect of the Borrower, dividends payable solely in respect of its Capital Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any shares of any class of the Capital Stock of Holdings or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”): (a) Holdings or the Borrower may (~~or may pay dividends to permit any direct or indirect parent thereof to~~i) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of its Capital Stock; provided, ~~provided~~ that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders contained in such other class of Capital Stock be at least as advantageous to the ~~Lenders in all respects material to their interests~~ Lenders, taken as a whole, as those contained in the Capital Stock redeemed thereby or ~~Stock Equivalents redeemed thereby;~~ (bii) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred and is continuing, declare and pay dividends or ~~would exist after giving effect thereto~~make distributions in the amount of proceeds of equity contributions or issuances of new shares of Capital Stock (other than Equity Contributions, issuances of Permitted Cure Securities or other equity contributions to the extent utilized in connection with other transactions permitted pursuant to Section 10.5 or 10.6); (b) Holdings or the Borrower may redeem, acquire, retire or repurchase (and the Borrower and its Subsidiaries may declare and pay Dividends to Holdings, the proceeds of which are used to so redeem, acquire, retire or repurchase) Capital Stock (including related stock appreciation rights or similar securities) (or to allow any of Holdings’ direct or indirect parent companies to so redeem, acquire, retire or repurchase its Capital Stock) from present or former officers, managers, consultants, employees and directors (or their respective successors, executors, administrators, heirs, legatees or distributees) of Holdings (or any direct or indirect parent thereof), the Borrower ~~may pay dividends on~~ and its ~~Stock~~ Subsidiaries, with the proceeds of Dividends from, seriatim, Holdings or ~~Stock Equivalents~~the Borrower, ~~provided~~ upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management or employee stock ownership plan, stock subscription plan, employment termination agreement or any employment agreements or stockholders’ agreement; provided, that except with respect to non-discretionary repurchases, acquisitions, retirement, or redemptions pursuant to the terms of any such agreement, the aggregate amount of all cash paid in respect of all such ~~dividends paid~~ shares so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $5,000,000 plus (ii) all amounts obtained by Holdings or the Borrower during such calendar year from the ~~Original Closing Date~~ sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this clause (b) may be carried forward to the next succeeding fiscal year and utilized to make payments pursuant to this clause (~~c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~b), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause ; (c) ~~shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis~~Holdings, the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis,~~ Borrower and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Restricted Subsidiaries may make Investments permitted by Section ~~10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)~~10.5; (d) to the extent constituting Dividends, Holdings may enter into and consummate transactions expressly permitted by Section 10.3 or the proviso to Section 9.9; (e) Holdings may pay Dividends on the First Restatement Effective Date to consummate the UVEST Acquisition; (f) Holdings may pay Dividends on the Effective Date to consummate the Pacific Life Acquisition; and (g) the Borrower may make and pay ~~dividends~~Dividends to Holdings: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any direct or indirect parent of Holdings to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of Holdings (or ~~indirect parent of the Borrower in an amount not~~ such parent) attributable to ~~exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group~~Holdings, ~~reduced by any such income taxes paid directly by~~ the Borrower or ~~the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used by Holdings to pay (or to make Dividends to allow any direct or indirect parent of ~~the Borrower~~ Holdings to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ Holdings (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used by Holdings to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; (iv) the ~~corporate existence~~ proceeds of which shall be used by Holdings to make Dividends permitted by Section 10.6; and (v) the proceeds of which shall be used by Holdings to pay (or to make Dividends to allow any direct or indirect parent ~~of the Borrower; and~~ thereof to pay) fees and expenses (ivother than to Affiliates) related to any ~~direct~~ unsuccessful equity or ~~indirect parent of the Borrower to finance any Investment~~ debt offering permitted ~~to be made~~ by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) ~~the Borrower~~ Holdings may declare and make distributions or pay dividends on ~~the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of~~ its ~~direct or indirect parents after the Original Closing Date~~Capital Stock; provided, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and that (i) the ~~Borrower may pay dividends in an~~ aggregate amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases in connection with~~ distributions paid or made by Holdings pursuant to this Section 10.6(g) shall not at any time exceed 50% of Cumulative Consolidated Net Income Available to Stockholders at such time and (ii) at the ~~exercise~~ time of ~~stock options~~payment of such dividends or the making of such distributions, and after giving effect thereto, the Borrower’s ratio of Consolidated Total Debt on the date of such payment of dividends or making of such distributions to Consolidated EBITDA for the most recent Test Period ended prior to the date of such payment of dividends or the making of such distributions and calculated as if such payment of dividends or making of such distributions had occurred on the first day of such Test Period, shall be less than 3.50:1.00.

Appears in 1 contract

Samples: Credit Agreement (LPL Investment Holdings Inc.)

Limitation on Dividends. ~~The Borrower will not~~ No Loan Party or any Restricted Subsidiary shall declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock (other than Disqualified Stock)) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or ~~Stock Equivalents~~ other Equity Interests or the Stock or ~~Stock Equivalents~~ other Equity Interests of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding purposes (all of the ~~foregoing~~foregoing “Dividends”); provided, ~~“dividends”):~~that this Section 9.2.6 shall not prevent any Dividend or payment if the Payment Condition is met with respect to such Dividend or payment at the time thereof and after giving effect thereto or, in the case of a Limited Condition Transaction, at the LCT Test Date; provided, further, that: (a) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or ~~Stock Equivalents~~ other Equity Interests for another class of its ~~(or such parent’s)~~ Stock or ~~Stock Equivalents~~ other Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Stock or ~~Stock Equivalents~~other Equity Interests, ~~provided~~ provided, that such new Stock or ~~Stock Equivalents~~ other Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or ~~Stock Equivalents~~ other Equity Interests redeemed thereby; (b) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may (or may ~~pay dividends~~ make Dividends to permit any direct or indirect parent thereof to) repurchase shares of ~~its~~ Holdings’ (or ~~such parent~~a Parent Entity’s) Stock or ~~Stock Equivalents~~ other Equity Interests held by ~~any~~ present or former ~~officer~~officers, ~~director~~ directors, employees or ~~employee~~ consultants of the Loan Parties and the Restricted Subsidiaries (or ~~their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or~~ any ~~parent thereof~~such parent), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements~~ agreements; provided, that the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year does not exceed in any calendar year the sum of (i) the greater of (x) $25,000,000 and (y) 0.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period (with unused amounts in any calendar year being carried over to succeeding calendar years; provided that Dividends made under this clause (b)(i) do not exceed the greater of (x) $60,000,000 and (y) 1.2% of Consolidated Total Assets as of the last day of the most recently ended Test Period in any calendar year); plus (ii) all amounts obtained by Holdings (or a Parent Entity) (to the extent contributed to a Borrower) during such calendar year from the sale of such Stock or other Equity Interests to other officers, directors, employees or consultants of Holdings and its Subsidiaries in connection with any ~~other management or employee benefit plan or agreement~~permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no ~~Default or~~ Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and their Restricted Subsidiaries (other than the Unit Subsidiary) may pay ~~dividends on its Stock or Stock Equivalents~~additional Dividends in an aggregate amount per annum not to exceed the greater of (x) $125,000,000 and (y) 5.0% of Market Capitalization as of the last day of the most recently ended Test Period, ~~provided that~~ less (y) the amount of ~~all such dividends paid from the Original Closing Date~~ voluntary prepayments, repurchases, redemptions, other defeasances and sinking fund payments in respect of Junior Debt made pursuant to ~~this clause~~ Section 9.2.7(a)(i)(y) and less (cz) ~~(other than dividends paid~~ the amount of Investments made pursuant to clause (~~c)(x~~2)(a) ~~below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to~~ of Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c9.2.5(k)(ii); (d) ~~the Borrower~~ each Loan Party and each Restricted Subsidiary may pay ~~dividends~~Dividends: (i) so long as no Specified Default exists or would exist after giving effect thereto, to its direct or indirect parent in amounts sufficient (when combined with loans and advances made by the ~~proceeds~~ Loan Parties for such purpose under Section 9.2.5(g)(iv)) for any such parent to pay its income tax obligations for so long as such Loan Party is a member of ~~which~~ a group filing a consolidated, combined, unitary, affiliated or other similar tax return with such parent; provided that the amount of Dividends paid under this clause (i) in respect of income tax obligations is limited to the extent such tax liability is directly attributable to the taxable income of such Loan Party (that are included in such consolidated, combined, unitary, affiliated or other similar tax return), determined as if such Loan Party and its Restricted Subsidiaries filed a separate consolidated, combined, unitary, affiliated or other similar tax return as a stand-alone group and will be used to pay ~~income~~ (or to make Dividends to allow any direct or indirect parent to pay), within thirty (30) days of the receipt thereof, the tax liability ~~attributable to the Borrower and the Restricted Subsidiaries~~ in each relevant jurisdiction in respect of such consolidated, combined, ~~unitary~~ unitary, affiliated or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiariesother similar returns; (ii) the proceeds of which (when combined with loans and advances made by the Loan Parties for such purpose under Section 9.2.5(g)(iv)) shall be used to allow any direct or indirect parent of ~~the Borrower~~ such Loan Party to pay (A) its accrued operating expenses incurred in the ~~ordinary course~~ Ordinary Course of ~~business~~ Business and other accrued corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ~~ordinary course~~ Ordinary Course of ~~business and attributable to the ownership~~ Business of WS International (or ~~operations of the Borrower, not to exceed $3,500,000 in~~ any ~~fiscal year~~ Parent Entity) plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ WS International (or any parent thereof) attributable to the ownership or operations of ~~the Borrower~~ WS International and its ~~Restricted~~ Subsidiaries or (CB) fees and expenses otherwise (1) due and payable by ~~the Borrower~~ WS International or any of its ~~Restricted~~ Subsidiaries and (2) permitted to be paid by ~~the Borrower~~ WS International or such ~~Restricted~~ Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) without duplication of clause (i), above, the proceeds of which (when combined with loans and advances made by the Loan Parties for such purpose in reliance on Section 9.2.5(g)(iii)) shall be used to pay franchise ~~and excise~~ taxes and other fees, similar taxes and expenses ~~required~~ required, in each case, to maintain the corporate existence of any ~~direct or indirect parent~~ Parent Entity within thirty (30) days of the ~~Borrower~~receipt thereof; (iv) constituting repurchases of Stock or other Equity Interests upon the cashless exercise of stock options; and (ivv) the proceeds of which are applied on the Closing Date, solely to ~~any direct or indirect parent~~ effect the consummation of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicableTransactions; (e) ~~[Reserved]~~(i) any Restricted Subsidiary that is not a Loan Party may pay Dividends to a Loan Party, to any other Restricted Subsidiary or to its equityholders ratably and (ii) any Loan Party may pay a Dividend to any other Loan Party (provided that if any Dividend by a US Loan Party to a non-US Loan Party consists of a distribution of Specified Assets exceeding the greater of (x) $75,000,000 and (y) 1.3% of Consolidated Total Assets as of the last day of the most recently ended Test Period or of Stock or all or a substantial portion of the assets of any US Loan Party, such US Loan Party shall deliver an updated Borrowing Base Certificate, giving effect to such Dividend and showing compliance with the applicable Borrowing Base) or any Restricted Subsidiary that is not a Loan Party if, in the case of a payment to a Restricted Subsidiary that is not a Loan Party, (x) such Dividend is a part of a series of transactions by which such Dividend is ultimately and promptly paid to a Loan Party or (y) such Dividend is part of a Dividend being made to the equityholders of any class of such Loan Party ratably; (f) the ~~Borrower or any of~~ Loan Parties and the Restricted Subsidiaries may make additional Dividends in an amount not to exceed the portion, if any, of the Available Excluded Contribution Amount on such date that the Administrative Borrower elects to apply to this clause (if) ~~pay cash in lieu~~ (which amounts shall reduce the amount of ~~fractional shares in connection with~~ the Available Excluded Contribution Amount that may be applied for any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its termsother purpose hereunder); (g) the ~~Borrower~~ Loan Parties and other Restricted Subsidiaries may ~~pay any dividend or distribution~~ make additional Dividends within 60 sixty (60) days after the date of the declaration ~~thereof~~thereof or the provision of a redemption notice with respect thereto, as the case may be, if (i) at the date of such declaration or notice, such ~~payment~~ Dividend would have complied with ~~the provisions~~ another provision of this ~~Agreement;~~Section 9.2.6 and (ii) the Administrative Borrower reasonably expects, as of such date of declaration or such date of provision of a redemption notice, the Loan Parties and the other Restricted Subsidiaries to be able to comply with such other provision of this Section 9.2.6 through either (x) the end of such sixty (60) day period or (y) if earlier, the latest date on which such declaration or provision of a redemption notice allows for such Dividend to be made; provided, that the making of any such Dividend will reduce capacity for Dividends pursuant to such other provision of this Section 9.2.6 when the declaration or provision of a redemption notice is so made; and (h) so long as no Event of Default exists or would exist after giving effect thereto, the ~~Borrower~~ Loan Parties and Restricted Subsidiaries may ~~declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock~~ make Dividends to Holdings or ~~the common stock of~~ any ~~of its direct or indirect parents after the Original Closing Date, of up~~ Parent Entity in an aggregate amount per annum not to exceed 6% ~~per annum~~ of the net cash proceeds received by or contributed ~~as common equity~~ to WS International from a capital contribution to Holdings or the ~~Borrower in~~ issuance or ~~from any such public~~ offering of Equity Interests of Holdings, other than (x) with respect to Disqualified Stock, (y) to the extent such ~~net~~ proceeds ~~are not utilized in connection~~ constitute Available Excluded Contribution Amounts the Administrative Borrower has elected to apply to clause (f) above or any other provision of this Agreement or (z) with ~~other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal~~ respect to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsa Cure Amount.

Appears in 1 contract

Samples: Abl Credit Agreement (WillScot Mobile Mini Holdings Corp.)

Limitation on Dividends. The Borrower will not, and will not ~~declare~~ permit any of its Subsidiaries to, declare, pay or ~~pay~~ otherwise authorize any dividends (other than dividends payable solely in ~~its Qualified~~ non-redeemable common stock or comparable common Equity ~~Interests~~Interests of the Borrower or any such Subsidiary, as the case may be) or return any equity capital to to, its ~~stockholders (including any option holders)~~ stockholders, partners, members or other equityholders or declare, authorize or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ stockholders, partners, members or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its ~~Stock~~ capital stock or ~~Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ other Equity Interests, now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the foregoing purposes, or and the Borrower will not and will not permit any of ~~the Restricted~~ its Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any ~~Stock or Stock Equivalents~~ shares of any class of the ~~Borrower~~capital stock or other Equity Interests of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~except that: (ai) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower, and (or ii) any non-Wholly-Owned Subsidiary of the Borrower may pay ~~dividends~~ cash Dividends to ~~permit any direct~~ its shareholders generally so long as the Borrower or ~~indirect parent thereof to) redeem~~ its respective Subsidiary which owns the Equity Interest in ~~whole or in part any of its Stock or Stock Equivalents for another class of its (or~~ the Subsidiary paying such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions Dividends receives at least ~~as advantageous to~~ its proportionate share thereof (based upon its relative holding of the ~~Lenders in all respects material to their interests as those contained~~ Equity Interests in the ~~Stock or Stock Equivalents redeemed thereby~~Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary); (b) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to) repurchase~~ issue shares of ~~its (~~Borrower Common Stock upon the exercise of any warrants or options or upon the conversion or redemption of any convertible or redeemable preferred or preference stock, and in connection with any such ~~parent’s) Stock~~ exercise, conversion or ~~Stock Equivalents held by any present or former officer~~redemption, ~~director or employee (or their respective Affiliates, estates or immediate family members) of~~ the Borrower ~~and its Subsidiaries or any parent thereof~~may, so long as ~~such~~ no Event of Default then exists or would result therefrom, pay cash in lieu of issuing fractional shares of Borrower Common Stock; (c) so long as no Event of Default then exists or would result therefrom, the Borrower may repurchase is Borrower Common Stock (and/or options or warrants in respect thereof) pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the aggregate amount of cash paid in respect of all such ~~dividends paid from the Original Closing Date~~ repurchases in any calendar year pursuant to this clause (c) does not exceed $40,000,000; (d) so long as no Event of Default then exists or would result therefrom, the Borrower may declare and pay, or otherwise pay or make, any other ~~than dividends~~ Dividend, provided that, at the time it is, in the case of a Non-Declared Dividend, paid or made and, in the case of any other Dividend, declared or otherwise authorized, the aggregate amount of such Dividend, when added to all Non-Declared Dividends theretofore paid or made and any other Dividends theretofore declared or otherwise authorized (or paid) pursuant to ~~clause (c)(x~~this Section 8.05(d) ~~below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from~~ after the ~~2014 July Repricing~~ Fourth Restatement Effective Date ~~and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c)~~ shall not exceed an amount equal to the sum of (~~x)(a~~x) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0,~~ $~~200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0~~ 625,000,000 plus (y) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount~~ (if positive) 75% of Cumulative Adjusted Net Income plus (z) the ~~Applicable Equity Amount at~~ aggregate cash proceeds (net of underwriting discounts and commissions) received by the Borrower after the Fourth Restatement Effective Date from issuances of its common equity securities (provided that the aggregate amount of such ~~time;~~ aggregate net cash proceeds received in any twelve-month period shall be deemed not to exceed $250,000,000 for ~~the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach~~ purposes of this Section ~~10.6(c~~8.05(d)), in each case determined at, in the case of a Non-Declared Dividend, the date paid or made and, in the case of any other Dividend, the date declared or otherwise authorized, provided that such Dividend (other than a Dividend that is a Non-Declared Dividend) ~~in respect~~ is paid within 90 days of ~~dividends previously~~ the making of such declaration or other authorization, provided, further, that Dividends may only be paid ~~in compliance with~~ or made by the Borrower under this Section ~~10.6(c); (d~~8.05(d) if at the ~~Borrower may pay dividends:~~ time of, in the case of a Non-Declared Dividend, the date paid or made and, in the case of any other Dividend, the date declared or otherwise authorized, the excess of (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent sum of the ~~Borrower~~ Total Unutilized Revolving Loan Commitment and Permanent Surplus Cash, in ~~an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group~~each case at such time, ~~reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries;~~ over (ii) the ~~proceeds of which shall be used to allow any direct or indirect parent~~ sum of the ~~Borrower to pay (A) its operating expenses incurred~~ amount of, in the ~~ordinary course~~ case of ~~business and~~ a Non-Declared Dividend, the aggregate amount of such Non-Declared Dividend plus any other ~~corporate overhead costs and expenses (including administrative~~Dividends theretofore declared or otherwise authorized but then unpaid and, ~~legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred~~ in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect case of any ~~initial public offering); (iii)~~ other Dividend, the ~~proceeds of which~~ amount thereof so declared or otherwise authorized, shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicableequal at least $200,000,000; (e) ~~[Reserved];~~the Borrower may issue and exchange shares of any class or series of its common stock now or hereafter outstanding for shares of any other class or series of its common stock now or hereafter outstanding; and (f) the Borrower or may, in connection with any reclassification of ~~the Restricted Subsidiaries may~~ its common stock and any exchange permitted by clause (ie) above, pay cash in lieu of issuing fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any class or series of its ~~direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as~~ common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsstock.

Appears in 1 contract

Samples: Credit Agreement (Reynolds American Inc)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Parent Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its (or such parent’s) Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents~~Equivalents (other than any amount received by the Parent Borrower in satisfaction of the requirements of the first sentence of Section 10.7(d)), provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Parent Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Fxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x), the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Parent Borrower to pay) (A) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns for the relevant jurisdiction of such parent attributable to the Parent Borrower or its Restricted Subsidiaries determined as if the Parent Borrower and its Restricted Subsidiaries filed by separately and (B) for as long as Holdings is a direct or indirect parent of the Parent Borrower, distributions equal to any taxable income of Holdings resulting from the hedging arrangements entered into by Holdings on or about September 13, 2006 and with respect to which the Parent Borrower ~~in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as~~ will be a ~~stand-alone group, reduced~~ counterparty multiplied by ~~any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~45%; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Parent Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any of its direct or indirect parent of the Parent Borrower~~; and~~; (iv) to any direct or indirect parent of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or ~~any of~~ its Restricted Subsidiaries and (C) the Parent Borrower shall comply with ~~Sections~~ Section 9.11 ~~and 9.12~~ to the extent applicable;; and (e) ~~[Reserved]; (f)~~ the Parent Borrower ~~or any~~ may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the ~~Restricted Subsidiaries may~~ date of issuance of any Qualified Holdings Debt, solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends, (i) ~~pay cash~~ the Parent Borrower shall be in ~~lieu~~ compliance with the covenant set forth in Section 10.9 of ~~fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition~~ the CF Agreement for the most recently ended Test Period and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the ~~Borrower may pay any dividend~~ Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to ~~withholding or similar Taxes payable or expected~~ 1.75 to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with 1.00 for the ~~exercise of stock options~~most recently ended Test Period.

Appears in 1 contract

Samples: Credit Agreement (Hca Inc/Tn)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may in an aggregate amount, when combined with amounts paid pursuant to Section 10.5(j), not to exceed $30,000,000 in any Fiscal Year (~~or may pay dividends~~ with unused amounts in any Fiscal Year being carried over to ~~permit~~ succeeding Fiscal Years subject to a maximum of $120,000,000 in any ~~direct or indirect parent thereof to)~~ Fiscal Year), repurchase ~~shares of~~ its ~~(or such parent’s)~~ Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, or pursuant to, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (i) all aggregate principal amounts paid pursuant to Section ~~10.7(a)(y)(i~~10.7(a)(i) from the ~~2014 July Repricing Effective~~ Closing Date and (ii) (A) all loans and advances made to any direct or indirect ~~parent~~ holding company of the Borrower pursuant to Section ~~10.5(m~~10.5(l) in lieu of dividends permitted by this clause (c) and (B) all Investments made pursuant to Section 10.5(s), shall not exceed an amount equal to (~~x)(a~~x) ~~if,~~ (I) at any time at which the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 4.75 to 1.00 but greater than 3.75 to 1.00 (giving effect on a Pro Forma ~~Basis~~Basis to such dividend) $75,000,000, or (II) at any time at which the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 3.75 to 1.00 (giving effect on a Pro Forma Basis to such dividend), $150,000,000) plus (y) the Applicable Equity Amount plus (z) to the extent the Consolidated Total Debt to Consolidated EBITDA Ratio is ~~less~~ not greater than ~~7.0~~ 4.75 to ~~1.0~~1.00, ~~$200,000,000 or (b) if~~both before and after giving effect, on a Pro Forma Basis, to the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0~~payment of such dividend, the Applicable Amount ~~plus (z)~~ at the ~~Applicable Equity Amount at~~ time such ~~time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of~~ dividends ~~previously paid in compliance with this Section 10.6(c)~~are paid; (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect ~~parent~~ holding company of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, -152- accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the ~~Borrower~~Borrower or its Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (~~iii~~ii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect ~~parent~~ holding company of the Borrower that holds no material assets other than Stock in the Borrower~~; and~~; (iviii) (A) to any direct or indirect ~~parent~~ holding company of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (Ax) such dividend shall be made substantially concurrently with the closing of such Investment, or at such later date as indicated at the time such dividend is paid, (By) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (Cz) the Borrower shall comply with Sections 9.11 and 9.12 to the extent ~~applicable~~applicable and (B) to Holdings to enable Holdings to make any Investment in any Affiliate of the Borrower that is controlled by Holdings; provided that (x) such dividend shall be made substantially concurrently with the closing of such Investment, or at such later date as indicated at the time such dividend is paid, and (y) the aggregate amount of dividends paid pursuant to this clause (d)(iii)(B), when aggregated with the aggregate amount of outstanding Investments made pursuant to Section 10.5(v), shall not exceed $25,000,000; (iv) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition permitted by this Agreement payable by the Borrower or its Restricted Subsidiaries and permitted to be paid by the Borrower or its Restricted Subsidiaries by this Agreement; (v) for any period during which the Borrower is a member of a group filing a consolidated, combined or unitary tax return with a direct or indirect holding company, dividends the proceeds of which will be used to pay Taxes to the extent such Taxes are attributable to the income of the Borrower and its Subsidiaries, in amounts not to exceed the amount of the relevant Taxes (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated, combined or unitary return with its Subsidiaries that are members of the consolidated, combined or unitary group); and (vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; provided, that the amount of all dividends made pursuant to this clause (d)(vi) shall be deemed to be a cash labor expense of the -153- Borrower (and shall be deducted from Consolidated Net Income); provided, further, that the aggregate amount of dividends made pursuant to this clause (d)(vi) shall not exceed $1,000,000 in any Fiscal Year; (e~~) [Reserved]; (f~~) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness or convertible securities and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness or convertible securities in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (hf) the Borrower may declare and pay dividends on the Borrower’s common stock ~~following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date,~~ of up to the greater of (x) 6% per annum of the net proceeds received by or contributed ~~as common equity~~ to the Borrower in or from ~~any such public offering~~ the IPO to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or ~~10.7; and~~10.7 and (y) 5% per annum of the Market Capitalization; (ig) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options; (h) the Borrower may pay dividends on its Qualified Preferred Stock; provided, that the aggregate amount of dividends made pursuant to this clause (h) shall not exceed $40,000,000; and (i) other dividends so long as, both immediately before and after giving effect to any such dividend, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than or equal to 2.50 to 1.00. (j) Notwithstanding anything to the contrary contained in this Section 10 (including Section 10.5 and this Section 10.6), the Borrower will not permit any of its non-wholly-owned Restricted Subsidiaries to, pay any dividends on any class or series of Stock unless the Borrower or Restricted Subsidiaries receive, or shall have received, or unless any such non-wholly-owned Restricted Subsidiaries shall accrue, an amount at least equal to the pro rata share of such dividends that would have been paid to the Borrower or any Restricted Subsidiaries if such dividends were paid based on the direct or indirect percentage ownership interest in such class of Stock held by the Borrower or by the Restricted Subsidiary that holds equity in the Restricted Subsidiary paying such dividend. For purposes of this Section 10.6(j) only, fees or royalty payments received from (or accrued by) the applicable non-wholly owned Subsidiary by the Borrower or by any Restricted Subsidiary shall also be deemed to be dividends to the extent the third-party minority owners of such non-wholly owned Subsidiary have a right to receive (and do receive) a payment, in the form of a dividend, that is not greater than the amount that would be proportional to the fee or royalty payment paid to the Borrower or any Restricted Subsidiaries, based on their respective ownership interests of the third-party minority owners and the Borrower or any Restricted Subsidiaries (whether direct or indirect) in such non-wholly owned Subsidiary. (k) So long as no Default or Event of Default is continuing or would result therefrom, the Borrower may redeem in whole or in part any of its Stock or Stock Equivalents previously issued to any Person as consideration in connection with a Permitted Acquisition (such Stock or Stock Equivalents, the “Specified Stock Consideration”) for cash; provided that (i) the cash paid to redeem such Specified Stock Consideration, when aggregated with all other cash payments made for such Specified Stock Consideration shall not exceed the value attributed to such Specified Stock Consideration at the time of such Permitted Acquisition (with such adjustments to such valuation to give effect to any applicable currency fluctuations between the date of issuance of such Specified Stock Consideration and the date of redemption), and (ii) the issuance of such Specified Stock Consideration to such Person in connection with such Permitted Acquisition shall be deemed, for all purposes hereunder after such redemption, to have been a cash payment in respect of such Permitted Acquisition made on the date of issuance in an amount equal to the cash paid to redeem such Specified Stock Consideration. Nothing in this Agreement shall restrict or prohibit the conversion of any Indebtedness (including the Exchange Notes), Preferred Stock (including the Qualified Preferred Stock) or Disqualified Stock into common stock of the Borrower from time to time, such conversion shall not constitute a “dividend” for purposes of this Section 10.6 and such conversion shall be permitted under this Section 10.6.

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Limitation on Dividends. ~~The Borrower~~ Holdings will not ~~declare or~~ pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders in their capacity as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~6.05) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of Holdings or the Canadian Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing,~~ foregoing “dividends”): (a) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock~~ capital stock or ~~Stock Equivalents~~ preferred stock for another class of capital stock or preferred stock (“Retired Capital Stock”), as the case may be, or rights to acquire its (capital stock or ~~such parent’s) Stock or Stock Equivalents~~ preferred stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock~~ shares of its capital stock (“Refunding Capital Stock”) or ~~Stock Equivalents~~preferred stock, as the case may be; provided that such ~~new~~ other class of capital stock or preferred stock is not Disqualified Capital Stock ~~or Stock Equivalents contain~~ and contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests (as determined in good faith by the Canadian Borrower) as those contained in the ~~Stock~~ capital stock or ~~Stock Equivalents~~ preferred stock, as the case may be, redeemed thereby, and provided further that such new issuance of capital stock does not increase the Applicable Amount; (b) ~~the Borrower~~ Holdings may (acquire, purchase, repurchase, redeem, acquire or ~~may pay dividends to permit any direct or indirect parent thereof to) repurchase~~ retire shares of its Qualified Capital Stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its Qualified Capital Stock) ~~Stock or Stock Equivalents~~ held by ~~any~~ past, present or ~~former officer~~future officers, ~~director~~ directors and employees of or ~~employee (or their respective Affiliates, estates or immediate family members) of the Borrower~~ consultants to Holdings and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements, employment agreements or consulting agreements; provided that the aggregate amount of all cash paid in respect of all such shares of Qualified Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any such Qualified Capital Stock) so redeemed, acquired, retired or repurchased does not exceed the sum of (i) $15.0 million in any calendar year (which shall increase to $30.0 million in any calendar year following the consummation of a Qualified IPO); notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 6.06(b)(i) (before giving pro forma effect to any carry forward) up to a maximum of $30.0 million (which shall increase to $60.0 million following the consummation of a Qualified IPO), may be carried forward to succeeding calendar years and utilized to make payments pursuant to this Section 6.06(b) plus (ii) all proceeds obtained by any parent entity of Holdings (and contributed to Holdings or the Canadian Borrower) or Holdings or the Borrower after the Closing Date from the sale of such Qualified Capital Stock to other ~~management~~ future, current or ~~employee benefit~~ former officers, managers, consultants, employees, directors and independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) in connection with any plan or ~~agreement~~agreement referred to above in this clause (b) plus (iii) all net cash proceeds obtained from any key-man life insurance policies received by Holdings or any of its Restricted Subsidiaries (or any parent entity of Holdings to the extent contributed to Holdings the Canadian Borrower) after the Closing Date less (iv) the amount of any previous dividends made pursuant to clauses (ii) and (iii) of this Section 6.06(b); and provided, further, that, the cancellation of Indebtedness owing to Holdings or any Restricted Subsidiary from any future, current or former employees, officers, managers, directors, consultants or independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any parent entity of Holdings, Holdings or any of the Restricted Subsidiaries in connection with a redemption, acquisition, retirement or repurchase of its Qualified Capital Stock will not be deemed to constitute a dividend for purposes of this Agreement ; (c) ~~provided~~ Holdings may engage in actions otherwise prohibited by this Section 6.06 in an amount that, at the time such dividend is made, would not exceed the Applicable Amount at such time, so long as (after giving pro forma effect to such dividend, Holdings and the Restricted Subsidiaries would be in compliance, on a pro forma basis, with a Total Leverage Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of the making of such dividend, as if such dividend and any other transactions being consummated in connection therewith occurred on the first day of such Test Period, of no greater than ~~with respect to clause (c)(z) below)~~ 4.50:1.00 and provided that no ~~Default~~ default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) ~~the Borrower~~ Holdings may declare and pay dividends and/or distributions in accordance with Section 6.12(h), provided that no default or Event of Default exists or would exist after giving effect thereto; (e) Holdings may pay ~~dividends~~dividends and/or make distributions (including repurchases of Qualified Capital Stock) to the holders of preferred Equity Interests to the extent of any cash contribution in Holdings or from the cash proceeds of Qualified Capital Stock (provided that such new equity does not increase the Applicable Amount); (f) Holdings may make and pay Dividends: (i) for any taxable period ending after the ~~proceeds~~ Amendment No. 2 Effective Date for which Holdings is a member of ~~which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of~~ a consolidated, combined, unitary or ~~affiliated~~ aggregate income tax ~~returns filed by~~ group (a “Tax Group”) of which a direct or indirect parent company of Holdings is the common parent, the proceeds of which shall be used to pay (or to make dividends to allow any parent entity of Holdings to pay) any income Tax liability of such Tax Group in respect of taxable income attributable to Holdings and its Subsidiaries, but not in excess of the ~~Borrower in~~ Tax liability that Holdings would incur if it filed tax returns as the parent of a Tax Group for itself and its Subsidiaries (and net of any payment already made and to be made by Holdings to a taxing authority to satisfy such Tax liability); provided that a dividend attributable to any Taxes attributable to an ~~amount not~~ Unrestricted Subsidiary shall be permitted only to ~~exceed~~ the ~~income tax liability of the Borrower and the~~ extent such Unrestricted Subsidiary distributed cash to Holdings or its Restricted Subsidiaries ~~were they to file as a stand-alone group, reduced by any~~ for such ~~income taxes paid directly by the Borrower or the Restricted Subsidiaries;~~purpose, (ii) the proceeds of which shall be used to pay (or to make dividends to allow any ~~direct or indirect~~ parent entity of ~~the Borrower~~ Holdings to ~~pay (A~~pay) its operating expenses incurred in the ordinary course (including related to maintenance of ~~business~~ organizational existence), general administrative costs and other ~~corporate~~ overhead costs and expenses (including administrative, legal, ~~accounting~~ accounting, professional and similar fees and expenses provided by third parties, including Holding’s proportionate share of such amount relating to such parent entity being a public company, if applicable), ~~which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in~~ plus any ~~fiscal year plus (B) any reasonable and customary~~ indemnification claims made by employees, managers, consultants, independent contractors, directors or officers of ~~the Borrower (or~~ any parent ~~thereof) attributable to the ownership or operations~~ entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering);Holdings, (iii) the proceeds of which shall be used to pay ~~franchise~~ (or to make dividends to allow any parent entity of Holdings to pay) franchise, excise and ~~excise~~ similar taxes and other fees, taxes and ~~expenses~~ expenses, in each case, required to maintain ~~the~~ its (or any of its parent entities’) corporate ~~existence of any direct~~ or ~~indirect parent of the Borrower;~~ other legal existence, and (iv) the proceeds of which shall be used to pay (or to make dividends to allow any parent entity of Holdings to pay) monitoring or management or similar fees or transaction fees and reimbursement of out-of-pocket costs, expenses and indemnities, in each case to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicablePermitted Investor; (eg) ~~[Reserved]~~Holdings may pay dividends within 60 days after the date of declaration thereof or the giving of such irrevocable notice thereof, as applicable, if, at the date of declaration or the giving of such notice, such payment would have complied with the provisions of this Section 6.06; (fh) Holdings shall be permitted to make dividends consisting of Excluded Contributions; (i) Holdings or the ~~Borrower~~ Canadian Borrower, as applicable, may make dividends or distributions to, or repurchase or redeem shares from, its equity holders in an amount per annum equal to the greater of (x) 6.0% of the net proceeds received by Holdings or the Canadian Borrower, as applicable, from any Qualified IPO and (y) 5.0% of the Market Capitalization, provided that no default or Event of Default exists or would exist after giving effect thereto; (j) Holdings may make additional dividends so long as, subject to Section 1.06, (x) no Event of Default shall have occurred and be continuing or would result therefrom and (y) after giving pro forma effect to such dividend, Holdings and the Restricted Subsidiaries would be in compliance, on a pro forma basis, with a Total Leverage Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of the making of such dividend, as if such dividend and any other transactions being consummated in connection therewith occurred on the first day of such Test Period, of no greater than 3.25 to 1.00; (k) Holdings may (or may make dividends to allow any parent entity of Holdings to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~dividend (including in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests), share split, reverse share split or combination thereof or any ~~Permitted Acquisition~~ acquisition or other Investment and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gl) ~~the Borrower~~ Holdings may pay (or may make dividends to allow any ~~dividend or distribution within 60 days after the date~~ parent entity of ~~declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Holdings to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any ~~present~~ future, current or former employee, director, ~~manager~~ manager, consultant or ~~consultant~~ independent contractor (or any of their respective ~~Affiliates~~Immediate Family Members) of any Holdings, ~~estates~~ any parent entity of Holdings, the Canadian Borrower or ~~immediate family members) and~~ any ~~repurchases~~ other Subsidiary of ~~Stock or Stock Equivalents in consideration of such payments including deemed repurchases~~ Holdings in connection with the exercise or vesting of ~~stock options~~Equity Interests or other equity awards or any repurchases, redemptions, acquisitions, retirements or withholdings of Equity Interests in connection with any exercise of Equity Interests or other equity options or warrants or the vesting of Equity Interests or other equity awards if such Equity Interests represent all or a portion of the exercise price of, or withholding obligation with respect to, such options or, warrants or other Equity Interests or equity awards; (m) Holdings may pay one or more dividends to the shareholders and/or option holders of Holdings in an aggregate amount not to exceed $400.0 million; (n) the repayment, redemption, repurchase, defeasance, exchange or other acquisition or retirement of Dividend Obligations (excluding the payment of any interest (in the form of accretion, PIK, cash or otherwise), expenses or premium related thereto); and (o) Holdings may pay dividends on director voting preferred shares in an amount not to exceed $50,000 per year.

Appears in 1 contract

Samples: Credit Agreement (Telesat Holdings Inc.)

Limitation on Dividends. ~~The Borrower will not declare~~ Declare or pay any ~~dividends~~ dividend (other than dividends payable solely in ~~its Qualified Equity Interests~~common stock of the Person making such dividend) ~~or return any capital to its stockholders (including any option holders)~~ on, or make any ~~other distribution,~~ payment ~~or delivery of property or cash to its stockholders as such~~on account of, or ~~redeem~~set apart assets for a sinking or other analogous fund for, ~~retire~~the purchase, ~~purchase~~ redemption, defeasance, retirement or ~~otherwise acquire, directly or indirectly, for consideration~~other acquisition of, any shares of any class of ~~its~~ Capital Stock of the Borrower or ~~Stock Equivalents~~ any Subsidiary or ~~the Stock~~ any warrants or ~~Stock Equivalents of~~ options to purchase any ~~direct or indirect parent~~ such Capital Stock, whether now or hereafter outstanding, or ~~set aside~~ make any ~~funds for any~~ other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the ~~foregoing purposes~~Borrower or any Subsidiary (collectively, ~~or permit any of the~~ "Restricted ~~Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower~~Payments"), ~~now or hereafter outstanding (all of the foregoing, “dividends”):~~except that: (a) any Subsidiary may make Restricted Payments to the Borrower ~~may (~~or ~~may pay dividends to permit~~ any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed therebyWholly Owned Subsidiary Guarantor; (b) ~~the Borrower~~ Permitted Issuances may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreementbe made; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no Default or Event of Default ~~exists~~ shall have occurred and be continuing, Holdings may (i) purchase Holding's common stock or ~~would exist after giving effect thereto~~common stock options from present or former officers or employees of Holdings, the Borrower ~~may pay dividends on its Stock~~ or ~~Stock Equivalents~~any Subsidiary upon the death, ~~provided~~ disability or termination of employment of such officer or employee, provided, that the aggregate amount of ~~all such dividends paid from the Original Closing Date pursuant to~~ payments under this clause (~~c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (~~i) ~~all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ during any fiscal year shall not exceed $2,500,000 net of any proceeds received by Holdings in connection with resales of any common stock or common stock options so purchased and (ii) ~~all loans~~ pay management fees to Hickx Xxxe and ~~advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends~~ its Affiliates expressly permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such timesubsection 7.10; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Borrower may ~~pay dividends: (i)~~ declare dividends on the ~~proceeds~~ Preferred Stock as set forth in the terms of ~~which will be used to pay income tax liability attributable to~~ the Preferred Stock, provided, that the Borrower may not pay such dividends in cash on or prior to May 31, 2002; and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided further that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay ~~any dividend~~ such dividends in cash after May 31, 2002 so long as no Default or ~~distribution within 60 days after the date~~ Event of ~~declaration thereof, if at the date~~ Default has occurred and is continuing or would occur as a result of ~~declaration~~ such payment ~~would have complied with the provisions of this Agreement; (h)~~ and the Borrower ~~may declare and pay dividends on~~ provides the ~~Borrower’s common stock following the first public offering~~ Administrative Agent with a certificate showing compliance with all of the ~~Borrower’s common stock or~~ covenants contained in subsection 7.1 (with appropriate supporting documentation if requested by the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsAdministrative Agent).

Appears in 1 contract

Samples: Credit Agreement (STC Broadcasting Inc)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its~~ the Qualified ~~Equity Interests~~Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock ~~or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock ~~or Stock Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower, and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby;~~ (other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; Table of Contents (b) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may (redeem, acquire, retire or ~~may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~parent’s~~Capital Stock) ~~Stock or Stock Equivalents~~ held by ~~any present~~ current or former ~~officer~~officers, ~~director or employee~~ managers, consultants, directors and employees (or their respective ~~Affiliates~~spouses, ~~estates~~ former spouses, successors, executors, administrators, heirs, legatees or ~~immediate family members~~distributees) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted ~~Subsidiaries were they to file as a stand-alone group~~Subsidiaries, ~~reduced by~~ upon the death, disability, retirement or termination of employment of any such ~~income taxes~~ Person or otherwise in accordance with any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid ~~directly~~ in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $20,000,000 plus (ii) all Net Cash Proceeds obtained by the Borrower during such calendar year from the sale of such Capital Stock to other present or ~~the Restricted Subsidiaries; (ii~~former officers, consultants, employees and directors in connection with any plan or agreement referred to above in this Section 10.6(b) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (Biii) all net cash proceeds obtained from any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable key-man life insurance policies received by the Borrower ~~or any~~ during such calendar year; notwithstanding the foregoing, 100% of ~~its Restricted Subsidiaries and permitted to be paid by~~ the ~~Borrower or such Restricted Subsidiary under this Agreement (including~~ unused amount of payments in respect of this Section 10.6(b) (before giving effect to any ~~initial public offering~~carry forward) may be carried forward to succeeding fiscal years and utilized to make payments pursuant to this Section 10.6(b); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (ivi) to ~~any direct or indirect parent of~~ the extent constituting Dividends, the Borrower ~~to finance~~ and any ~~Investment permitted to be made by the Borrower or a~~ Restricted Subsidiary ~~pursuant to~~ may make Investments permitted by Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) ~~honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and~~ each Restricted Subsidiary may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity Dividends to the Borrower and to Restricted Subsidiaries (and, in ~~or from any such public offering~~ the case of a Dividend by a non-wholly owned Restricted Subsidiary, to the ~~extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the~~ Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any ~~repurchases~~ Restricted Subsidiary and to each other owner of Capital Stock ~~or Stock Equivalents in consideration~~ of such ~~payments including deemed repurchases in connection with the exercise of stock options.~~Restricted Subsidiary based on their relative ownership interests);

Appears in 1 contract

Samples: Credit Agreement (Amsurg Corp)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x) of the Original Cash Flow Credit Agreement, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Borrower to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct or indirect~~ for the relevant jurisdiction of such parent of attributable to the Borrower ~~in an amount not to exceed the income tax liability of~~ or its Restricted Subsidiaries determined as if the Borrower and ~~the~~ its Restricted Subsidiaries ~~were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~filed separately; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent ~~permitted~~ not prohibited in Section 10.5) of the Person formed or acquired into the Borrower or ~~any of~~ its Restricted Subsidiaries and (C) ~~the~~ Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) ~~[Reserved];~~the Borrower may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings Debt solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends (i) the Borrower shall be in compliance with the covenant set forth in Section 10.8 for the most recently ended Test Period for which Section 9.1 Financials have been delivered and (ii) the Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or equal to 1.75 to 1.00 for the most recently ended Test Period for which Section 9.1 Financials have been delivered; and (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends ~~in an amount~~ so long as the Consolidated Total Debt to Consolidated EBITDA Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered is less than or equal to ~~withholding or similar Taxes payable or expected~~ 4.25:1.00, determined on a Pro Forma Basis after giving effect to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases in connection with the exercise of stock options~~dividend.

Appears in 1 contract

Samples: Credit Agreement (HCA Healthcare, Inc.)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Parent Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Parent Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x) of the Original Credit Agreement, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Parent Borrower to pay) (A) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns for the relevant jurisdiction of such parent attributable to the Parent Borrower or its Restricted Subsidiaries determined as if the Parent Borrower and its Restricted Subsidiaries filed by separately and (B) for as long as Hercules Holdings is a direct or indirect parent of the Parent Borrower, distributions equal to any taxable income of Holdings or Hercules Holdings resulting from the hedging arrangements entered into by Hercules Holdings on or about September 13, 2006 and with respect to which the Parent Borrower ~~in an amount not to exceed~~ is the ~~income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced~~ counterparty multiplied by ~~any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~45%; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Parent Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any of its direct or indirect parent of the Parent Borrower; and (iv) to any direct or indirect parent of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or ~~any of~~ its Restricted Subsidiaries and (C) ~~the~~ Parent Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable;; and (e) ~~[Reserved]; (f)~~ the Parent Borrower ~~or any~~ may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the ~~Restricted Subsidiaries may~~ date of issuance of any Qualified Holdings Debt solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends (i) ~~pay cash~~ the Parent Borrower shall be in ~~lieu of fractional shares~~ compliance with the covenant set forth in ~~connection with any dividend, split or combination thereof or any Permitted Acquisition~~ Section 10.8 for the most recently ended Test Period for which Section 9.1 Financials have been delivered and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the ~~Borrower may pay any dividend~~ Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to ~~withholding or similar Taxes payable or expected~~ 1.75 to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with 1.00 for the ~~exercise of stock options~~most recently ended Test Period for which Section 9.1 Financials have been delivered.

Appears in 1 contract

Samples: Credit Agreement (HCA Holdings, Inc.)

Limitation on Dividends. ~~The~~ Neither Holdings nor the Borrower will ~~not~~ declare or pay any dividends (other than (a) in respect of Holdings, dividends payable solely in respect of its ~~Qualified Equity Interests~~Capital Stock and (b) in respect of the Borrower, dividends payable solely in respect of its Capital Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any shares of any class of the Capital Stock of Holdings or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”): (a) Holdings or the Borrower may (~~or may pay dividends to permit any direct or indirect parent thereof to~~i) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of its Capital Stock; provided, ~~provided~~ that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders contained in such other class of Capital Stock be at least as advantageous to the ~~Lenders in all respects material to their interests~~ Lenders, taken as a whole, as those contained in the Capital Stock redeemed thereby or ~~Stock Equivalents redeemed thereby;~~ (bii) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred and is continuing, declare and pay dividends or ~~would exist after giving effect thereto~~make distributions in the amount of proceeds of equity contributions or issuances of new shares of Capital Stock (other than Equity Contributions, issuances of Permitted Cure Securities or other equity contributions to the extent utilized in connection with other transactions permitted pursuant to Section 10.5 or 10.6); (b) Holdings or the Borrower may redeem, acquire, retire or repurchase (and the Borrower and its Subsidiaries may declare and pay Dividends to Holdings, the proceeds of which are used to so redeem, acquire, retire or repurchase) Capital Stock (including related stock appreciation rights or similar securities) (or to allow any of Holdings’ direct or indirect parent companies to so redeem, acquire, retire or repurchase its Capital Stock) from present or former officers, managers, consultants, employees and directors (or their respective successors, executors, administrators, heirs, legatees or distributees) of Holdings (or any direct or indirect parent thereof), the Borrower ~~may pay dividends on~~ and its ~~Stock~~ Subsidiaries, with the proceeds of Dividends from, seriatim, Holdings or ~~Stock Equivalents~~the Borrower, ~~provided~~ upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management or employee stock ownership plan, stock subscription plan, employment termination agreement or any employment agreements or stockholders’ agreement; provided, that except with respect to non-discretionary repurchases, acquisitions, retirement, or redemptions pursuant to the terms of any such agreement, the aggregate amount of all cash paid in respect of all such ~~dividends paid~~ shares so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $5,000,000 plus (ii) all amounts obtained by Holdings or the Borrower during such calendar year from the ~~Original Closing Date~~ sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this clause (b) may be carried forward to the next succeeding fiscal year and utilized to make payments pursuant to this clause (~~c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~b), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause ; (c) ~~shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis~~Holdings, the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis,~~ Borrower and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Restricted Subsidiaries may make Investments permitted by Section ~~10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)~~10.5; (d) to the extent constituting Dividends, Holdings may enter into and consummate transactions expressly permitted by Section 10.3 or the proviso to Section 9.9; (e) Holdings may pay Dividends on the Closing Date to consummate the UVEST Acquisition; and (f) the Borrower may make and pay ~~dividends~~Dividends to Holdings: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any direct or indirect parent of Holdings to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of Holdings (or ~~indirect parent of the Borrower in an amount not~~ such parent) attributable to ~~exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group~~Holdings, ~~reduced by any such income taxes paid directly by~~ the Borrower or ~~the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used by Holdings to pay (or to make Dividends to allow any direct or indirect parent of ~~the Borrower~~ Holdings to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ Holdings (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used by Holdings to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of any direct~~ its (or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect ~~parents after~~ parents’) corporate existence; (iv) the ~~Original Closing Date,~~ proceeds of up which shall be used by Holdings to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions make Restricted Payments permitted by Section ~~10.5, 10.6 or 10.7~~10.6; and (v) the proceeds of which shall be used by Holdings to pay (or to make Dividends to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; (g) Holdings may declare and make distributions or pay dividends on its Capital Stock; provided, that (i) the ~~Borrower may pay dividends in an~~ aggregate amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases in connection with~~ distributions paid or made by Holdings pursuant to this Section 10.6(g) shall not at any time exceed 50% of cumulative Consolidated Net Income at such time and (ii) at the ~~exercise~~ time of ~~stock options~~payment of such dividends or the making of such distributions, and after giving effect thereto, the Borrower’s ratio of Consolidated Total Debt on the date of such payment of dividends or making of such distributions to Consolidated EBITDA for the most recent Test Period ended prior to the date of such payment of dividends or the making of such distributions and calculated as if such payment of dividends or making of such distributions had occurred on the first day of such Test Period, shall be less than 3.50:1.00.

Appears in 1 contract

Samples: Credit Agreement (LPL Investment Holdings Inc.)

Limitation on Dividends. ~~The~~ None of Holdings, the Borrower or the Canadian Borrower will ~~not~~ declare or pay any dividends (other ~~than~~ than, (a) in respect of Holdings, dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock and (b) in respect of the Borrower, dividends payable solely in its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock~~ shares of any class of the capital stock of Holdings or ~~Stock Equivalents of~~ the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~ provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) Holdings or the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock~~ shares of its capital stock (or ~~Stock Equivalents~~pay dividends with such proceeds), provided that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) Holdings or the Borrower may (or may pay ~~dividends~~ Dividends to ~~permit any direct or indirect parent thereof to)~~ Parent to repurchase shares of its or Parent’s capital stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its or Parent’s capital stock) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates~~directors and employees of Parent, ~~estates or immediate family members)~~ Holdings and its Subsidiaries, with the proceeds of dividends from, seriatim, the Borrower and ~~its Subsidiaries or any parent thereof~~Holdings, as applicable, which shall also be permitted, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) the Borrower and the Restricted Subsidiaries may make investments permitted by Section 10.5, (d) Holdings may declare and pay dividends on its capital stock, with the proceeds of dividends from, seriatim, the Borrower, which shall also be permitted, provided ~~that~~that (i) subject to clauses (ii) and (iii) below, ~~so long as~~ the aggregate amount of such dividends paid by Holdings pursuant to this clause (~~other than~~ d) shall not at any time exceed the greater of (x) $50,000,000 in the aggregate from the Closing Date and (y) 50% of Cumulative Consolidated Net Income Available to Stockholders at such time less the amount of dividends previously paid pursuant to clause (i)(x) or (i)(y) of this proviso following the last day of the most recent fiscal quarter for which Section 9.1 Financials have been delivered to the Lenders under Section 9.1, (ii) with respect to clause (~~c)(z) below) no Default or Event~~ x), at the time of ~~Default exists or would exist~~ the payment of any such dividends and after giving effect thereto, the ~~Borrower may pay dividends~~ Consolidated Senior Debt to Consolidated EBITDA Ratio on ~~its Stock or Stock Equivalents, provided that~~ the ~~amount~~ date of ~~all~~ such payment of such dividends ~~paid from the Original Closing Date pursuant to this clause~~ shall be less than 3.50:1.00 and (ciii) ~~(other than dividends paid pursuant~~ with respect to clause (~~c)(x) below prior to March 31, 2015~~y), ~~when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from~~ at the ~~2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent~~ time of the ~~Borrower pursuant to Section 10.5(m~~payment of any such dividends and after giving effect thereto, both (a) ~~in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis,~~ the Consolidated Total Debt to Consolidated EBITDA Ratio is on the date of such payment of such dividends shall be less than ~~7.0 to 1.0, $200,000,000 or~~ 4.50:1.00 and (b) ~~if, on a Pro Forma Basis,~~ the Consolidated ~~Total~~ Senior Debt to Consolidated EBITDA Ratio ~~is greater than 7.0 to 1.0, $0 plus (y) if,~~ on ~~a Pro Forma Basis,~~ the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is~~ date of such payment of such dividends shall be less than ~~7.0 to 1.0, the Applicable Amount plus~~ 2.50:1.00 and (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (de) the Borrower and Holdings may declare and pay ~~dividends: (i)~~ dividends and/or make distributions on its capital stock, as applicable, the proceeds of which will be used by Parent or Holdings solely to pay ~~income tax liability attributable to~~ taxes of Parent, Holdings, the Borrower and the ~~Restricted~~ Subsidiaries ~~in respect~~ as part of ~~consolidated~~a consolidated tax filing group for U.S. federal, ~~combined~~state or local tax purposes, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone groupalong with franchise taxes, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting administrative and similar expenses ~~provided by third parties), which are reasonable~~ related to its existence and ~~customary and incurred in the ordinary course of business and attributable to the~~ ownership ~~or operations~~ of the Borrower, as applicable, provided that the amount of such dividends does not to exceed ~~$3,500,000~~ in any fiscal year ~~plus (B) any reasonable and customary indemnification claims made by directors or officers~~ the amount of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such ~~Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees,~~ taxes and expenses ~~required to maintain~~ payable for such fiscal year (it being understood that such expenses shall in no event exceed $1,000,000 in the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% aggregate per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsfiscal year).

Appears in 1 contract

Samples: Credit Agreement (Sealy Mattress CORP)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock or Stock Equivalents (other than Disqualified Stock)) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the ~~Borrower,~~ Borrower now or hereafter outstanding (all of the foregoing, “dividends”):), provided, subject to the Cash Management Order, the Tax Order and the Wages Order: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that (i) such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby~~thereby and (ii) the cash proceeds from any such contribution or issuance have not otherwise been applied pursuant to the Applicable Equity Amount; (b) so long as no Payment Default or Event of Default shall have occurred and is continuing or would result therefrom, the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or ~~shareholder agreements~~ stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section (b) do not exceed in any calendar year $25,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $50,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds from the sale of Stock (other than Disqualified Stock) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies) or any Subsidiary of the Borrower that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Stock have not otherwise been applied pursuant to the Applicable Equity Amount; plus (ii) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (iii) the amount of any dividends or distributions previously made with the cash proceeds described in clauses (i) and (ii) above; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies), or any Subsidiary of the Borrower in connection with a repurchase of Stock or Stock Equivalents of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no Payment Default or Event of Default ~~exists~~ shall have occurred and is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (~~i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii~~A) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) and (B) all Investments made pursuant to Section 10.5(v), shall not exceed an amount equal to (~~x)(a~~x) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z)~~ the Applicable Equity Amount at the time such ~~time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of~~ dividends ~~previously paid in compliance with this Section 10.6(c)~~are paid; (d) the Borrower may ~~pay~~ make dividends, distributions or loans to any direct or indirect parent company of the Borrower in amount required for any such direct or indirect parent to pay, in each case without duplication: (i) foreign, federal, state and local income taxes, to the ~~proceeds of which will be used to pay~~ extent such income ~~tax liability~~ taxes are attributable to the ~~Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the~~ income ~~tax liability~~ of the Borrower and its Subsidiaries; provided that the ~~Restricted~~ amount of such payments in any fiscal year does not exceed the amount that the Ultimate Parent and its Subsidiaries ~~were they~~ are required to ~~file as a stand-alone group~~pay in respect of foreign, ~~reduced by any such~~ federal, state and local income taxes ~~paid directly by~~ attributable to the income of the Borrower ~~or the Restricted Subsidiaries~~and its Subsidiaries for such fiscal year; (ii) ~~the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its~~ such parents’ and their respective Subsidiaries’ (other than the Oncor Subsidiaries) general operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and to the extent such costs and expenses are attributable to the ownership or ~~operations~~ operation of the ~~Borrower~~Borrower and its Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent ~~thereof~~thereof and such parent’s Subsidiaries (other than the Oncor Subsidiaries) to the extent such claims are attributable to the ownership or ~~operations~~ operation of the Borrower and its Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary or (C) fees and expenses otherwise due and payable by the Borrower (or any parent thereof and such parent’s Subsidiaries (other than the Oncor Subsidiaries) to the extent such fees and expenses are attributable to the ownership or operation of the Borrower and its Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary and ~~permitted~~ not prohibited to be paid by the Borrower ~~or such~~ and its Restricted ~~Subsidiary under this Agreement (including in respect of any initial public offering)~~Subsidiaries hereunder; (iii) ~~the proceeds of which shall be used to pay~~ franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower~~; and~~; (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a any Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any ~~of its~~ Restricted ~~Subsidiaries and~~ Subsidiary, (C) the Borrower shall comply with ~~Sections~~ Section 9.11 and Section 9.12 to the extent ~~applicable~~applicable and (D) the aggregate amount of such dividends shall reduce the ability of the Borrower and the Restricted Subsidiary to make Investments under the applicable clauses of Section 10.5 by such amount; (v) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition or disposition transaction payable by the Borrower or the Restricted Subsidiaries; and (vi) customary salary, bonus and other benefits payable to officers, employees or consultants of any direct or indirect parent company (and such parent’s Subsidiaries (other than the Oncor Subsidiaries)) of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Subsidiaries; (e) ~~[Reserved]~~to the extent (if any) constituting dividends, transactions pursuant to the Shared Services Agreement or described in any Budget approved by the Administrative Agent and the Joint Lead Arrangers; (f) to the extent constituting dividends, the Borrower may enter into and consummate transactions expressly permitted by any provision of Section 10.3; (g) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Stock or Stock Equivalents represents a portion of the ~~Restricted Subsidiaries~~ exercise price of such options or warrants, and the Borrower may pay dividends to any direct or indirect parent thereof as and when necessary to enable such parent to effect such repurchases; (h) the Borrower may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gi) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (hj) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and[reserved]; (ik) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options; (l) [reserved]; (m) the Borrower may make payments described in Sections 9.9(a), 9.9(c), 9.9(f), 9.9(g), 9.9(h), 9.9(i), 9.9(k), 9.9(l) and 10.5(z); (n) the Borrower may pay dividends or make distributions in connection with the Transactions, including payments in respect of the Ultimate Parent’s and its Subsidiaries’ long term incentive plan or in respect of tax gross-ups and other deferred compensation; (o) [reserved]; (p) the Borrower may make distributions or payments of Receivables Fees; (q) [reserved]; (r) [reserved]; (s) the Borrower may make distributions of, or Investments in, Receivables Facility Assets for purposes of inclusion in any Permitted Receivables Financing, in each case made in the ordinary course of business or consistent with past practices; (t) the Borrower may make distributions, loans or other advances to Parent Guarantor, in an amount not to exceed $125,000,000 in the aggregate for all such distributions, loans or other advances made from the Closing Date solely to the extent that the proceeds of such distributions, loans or other advances are used by Parent Guarantor to satisfy payment obligations (including, without limitation, payment of principal, interest and any make-whole, prepayment or similar fees) owed by Parent Guarantor under (i) the Tex-La Indebtedness and (ii) the CT Lease Indebtedness; provided that no such distribution, loan or other advance shall be permitted pursuant to this clause (ii) unless (x) the Borrower or the Restricted Subsidiary, as applicable, that is the lessee under the applicable CT Lease retains its leasehold interest in respect of such CT Lease or (y) the assets subject to such CT Lease are contributed to the Borrower or a Restricted Subsidiary; and (u) the Borrower may make loans to, or permit letters of credit (including Letters of Credit) to be issued on behalf of, any of its direct or indirect parent companies or such parents’ Subsidiaries for working capital purposes or the cost of maintaining the headquarters building at Energy Plaza, in each case so long as made in the ordinary course of business and consistent with past practices and in an amount not to exceed $50,000,000. Notwithstanding anything to the contrary contained in Section 10 (including Section 10.5 and this Section 10.6), the Borrower will not, and will not permit any of its Restricted Subsidiaries to, pay any cash dividend or make any cash distribution on or in respect of the Borrower’s Stock or Stock Equivalents or purchase or otherwise acquire for cash any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower, for the purpose of paying any cash dividend or making any cash distribution to, or acquiring any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower for cash from the Permitted Holders, or guarantee any Indebtedness of any Affiliate of the Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Stock or Stock Equivalents to or from the Permitted Holders, in each case by means of utilization of the cumulative dividend and investment credit provided by the use of the Applicable Amount or the exceptions provided by Sections 10.5(i), (m) and (v), and Section 10.7(ii), unless at the time and after giving effect to such payment, no Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (ai) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred, is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay ~~dividends on~~ Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock ~~Equivalents~~(or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of any Parent Entity of the Borrower, the Borrower and the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided ~~that~~ that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such ~~dividends paid~~ shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or the Borrower during such calendar year from the ~~Original Closing Date~~ sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this ~~clause (c~~Section 10.6(b) (~~other than dividends paid pursuant~~ any amount so carried forward shall be deemed to ~~clause (c)(x) below prior to March 31, 2015~~be used last in the subsequent fiscal year)~~, when aggregated with~~ ; (i) ~~all aggregate principal amounts paid pursuant~~ to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may make Investments permitted by Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 10.5 and (ii) ~~all loans and advances made~~ each Restricted Subsidiary may make Dividends to ~~any direct or indirect parent of~~ the Borrower ~~pursuant~~ and to ~~Section 10.5(m)~~ Restricted Subsidiaries (and, in ~~lieu~~ the case of ~~dividends permitted~~ a Dividend by ~~this clause (c) shall not exceed an amount equal~~ a non-wholly owned Restricted Subsidiary, to ~~(x)(a) if,~~ the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(ctheir relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed~~ Borrower and its Restricted Subsidiaries; (vii) the proceeds of which shall be distributed in connection with the Transactions (including the Special Dividend, all or ~~acquired into~~ a portion of which may be paid after the Closing Date but in no event later than June 15, 2012); (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) so long as no Event of Default has occurred and is continuing or ~~any~~ would result therefrom, the greater of ~~its Restricted Subsidiaries~~ (x) $250,000,000 and (Cy) 6.75% of Consolidated Total Assets (measured as of the date such Dividend is paid based upon the Section 9.1 Financials most recently delivered on or prior to such date), plus (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid plus (iii) an amount equal to the Available Equity Amount at the time such Dividend is paid; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.0:1.0; (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or immediate family members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 1 contract

Samples: Credit Agreement (LPL Investment Holdings Inc.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the ~~foregoing,~~ foregoing “dividends”):), provided that, (x) to the extent that a dividend, distribution or any other return of capital pursuant to paragraph (c) below is funded with a Borrowing hereunder, Excess Availability is not less than $100,000,000 after giving effect to such dividend, distribution or other return of capital and (y) so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may ~~pay~~ make dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements~~ agreements; provided, that the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all amounts obtained by the Borrower during such calendar year from the sale of such Stock or Stock Equivalents to other officers, directors and employees of the Borrower and its Subsidiaries in connection with any permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; provided further that the aggregate amount permitted by the foregoing proviso with respect to any calendar year commencing with 2008 shall be increased by 100% of the amount of unused share repurchases for the immediately preceding year (such amount, a “carry-over amount”) without giving effect to any carry-over amount that was added in such preceding calendar year and assuming any such carry-over amount is utilized first and so long as the aggregate amount of cash paid in respect of all such shares so repurchased in any calendar year does not exceed $20,000,000; and provided still further the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year may exceed the aggregate amount permitted by the foregoing provisos if Excess Availability is not less than $100,000,000 after giving effect to such dividend, distribution or other ~~management or employee benefit plan or agreement~~return of capital; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i)(a) if$50,000,000 or (b) $100,000,000, ~~on a Pro Forma Basis,~~ if the Consolidated Total Debt to Consolidated EBITDA Ratio for the Test Period last ended is less than ~~7.0 to 1.0~~4.00:1.00, ~~$200,000,000 or (b) if,~~ determined on a Pro Forma ~~Basis~~Basis after giving effect to such dividend, ~~the Consolidated Total Debt~~ less any amount expended pursuant to ~~Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0~~ Section 10.7(a)(i)(x) plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~ii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Borrower may pay dividends: (i) so long as the Borrower is a member of a group filing a consolidated, combined, unitary or affiliated tax return with a parent, the proceeds of which will be used to pay ~~income~~ (or to make dividends to allow any direct or indirect parent of the Borrower to pay) within 30 days of the receipt thereof, the tax liability to each relevant jurisdiction in respect of such consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of such parent to the extent such tax liability is directly attributable to the taxable income of the Borrower ~~and the Restricted~~ or its Subsidiaries (that are included in ~~respect of~~ such consolidated, combined, unitary or affiliated tax ~~returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of~~ return), determined as if the Borrower and ~~the Restricted~~ such Subsidiaries ~~were they to file~~ filed a separate consolidated, combined, unitary or affiliated tax return as a stand-alone group~~, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~; (ii) the proceeds of which shall be used to allow any direct or indirect parent of ~~the~~ Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 2,000,000 in any fiscal year of the Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its ~~Restricted~~ Subsidiaries or (CB) fees and expenses otherwise (x) due and payable by the Borrower or any of its ~~Restricted~~ Subsidiaries and (y) permitted to be paid by the Borrower or such ~~Restricted~~ Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower~~; and~~, within thirty (30) days of the receipt thereof; (iv) in amount equal to the Net Cash Proceeds of any Disposition of Non-Core Assets for the purposes of complying with the requirements of the Red Man Transaction Agreement or the Merger Agreement (as defined in the Existing Revolving Credit Agreement), as applicable, relating thereto; (v) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made ~~by the Borrower or a Restricted Subsidiary~~ pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such ~~Investment,~~ Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or ~~such~~ its Restricted ~~Subsidiary~~ Subsidiaries or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or ~~any of~~ its Restricted Subsidiaries ~~and (C) the Borrower shall comply with Sections 9.11 and 9.12~~ in order to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any consummate such Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7Acquisition; and (ivi) ~~the Borrower may pay dividends~~ in an amount ~~equal~~ not to ~~withholding or similar Taxes payable or expected~~ exceed the amount necessary to ~~be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents~~ effect the Investment described in ~~consideration of such payments including deemed repurchases in connection with the exercise of stock options~~Section 10.5(u).

Appears in 1 contract

Samples: Revolving Loan Credit Agreement (McJunkin Red Man Holding Corp)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any Stock or Stock Equivalents of the Parent Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent ~~thereof to~~thereof) in an aggregate amount, when combined with amounts paid pursuant to Section 10.5(j), not to exceed $25,000,000 in any Fiscal Year, to repurchase ~~shares of~~ its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Parent Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original Closing~~ Restatement Effective Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (i) all aggregate principal amounts paid pursuant to Section ~~10.7(a)(y)(i~~10.7(a) from the ~~2014 July Repricing~~ Restatement Effective Date and (ii) (A) all loans and advances made to any direct or indirect ~~parent~~ holding company of the Parent Borrower pursuant to Section ~~10.5(m~~10.5(l) in lieu of dividends permitted by this clause (c) and (B) all Investments made pursuant to Section 10.5(s), shall not exceed an amount equal to (~~x)(a~~x) ~~if,~~ (I) at any time at which the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 4.75 to 1.00 but greater than 3.75 to 1.00 (giving effect on a Pro Forma ~~Basis~~Basis to such dividend) $75,000,000, or (II) at any time at which the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 3.75 to 1.00 (giving effect on a Pro Forma Basis to such dividend), $150,000,000) plus (y) the Applicable Equity Amount plus (z) to the extent the Consolidated Total Debt to Consolidated EBITDA Ratio is ~~less~~ not greater than ~~7.0~~ 4.75 to ~~1.0~~1.00, ~~$200,000,000 or (b) if~~both before and after giving effect, on a Pro Forma Basis, to the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0~~payment of such dividend, the Applicable Amount ~~plus (z)~~ at the ~~Applicable Equity Amount at~~ time such ~~time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of~~ dividends ~~previously paid in compliance with this Section 10.6(c)~~are paid; (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect ~~parent~~ holding company of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the ~~Borrower~~Parent Borrower or its Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (~~iii~~ii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect ~~parent~~ holding company of the Parent Borrower that holds no material assets other than Stock in the Parent Borrower~~; and~~; (iviii) (A) to any direct or indirect ~~parent~~ holding company of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (Ax) such dividend shall be made substantially concurrently with the closing of such Investment, (By) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or any of its Restricted Subsidiaries and (Cz) the Parent Borrower shall comply with Sections 9.11 and 9.12 to the extent ~~applicable~~applicable and (B) to Holdings to enable Holdings to make any Investment in any Affiliate of the Parent Borrower that is controlled by Holdings; provided that (x) such dividend shall be made substantially concurrently with the closing of such Investment and (y) the aggregate amount of dividends paid pursuant to this clause (d)(iii)(B), when aggregated with the aggregate amount of outstanding Investments made pursuant to Section 10.5(v), shall not exceed $25,000,000; (iv) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition permitted by this Agreement payable by the Parent Borrower or its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or its Restricted Subsidiaries by this Agreement; (v) for any period during which the Parent Borrower is a member of a group filing a consolidated, combined or unitary tax return with a direct or indirect holding company, dividends the proceeds of which will be used to pay Taxes to the extent such Taxes are attributable to the income of the Parent Borrower and its Subsidiaries, in amounts not to exceed the amount of the relevant Taxes (including any penalties and interest) that the Parent Borrower would owe if the Parent Borrower were filing a separate tax return (or a separate consolidated, combined or unitary return with its Subsidiaries that are members of the consolidated, combined or unitary group); and (vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Parent Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and its Restricted Subsidiaries; provided, that the amount of all dividends made pursuant to this clause (d)(vi) shall be deemed to be a cash labor expense of the Parent Borrower (and shall be deducted from Consolidated Net Income); provided, further, that the aggregate amount of dividends made pursuant to this clause (d)(vi) shall not exceed $1,000,000 in any Fiscal Year; (e) ~~[Reserved]; (f)~~ the Parent Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gf) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Parent Borrower may declare and pay dividends on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the ~~Original Closing~~ Restatement Effective Date, of up to 6% per annum of the net proceeds received by or contributed ~~as common equity~~ to the Parent Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (ig) the Parent Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options. (h) Notwithstanding anything to the contrary contained in this Section 10 (including Section 10.5 and this Section 10.6), no Borrower will, and no Borrower will permit any of its respective Restricted Subsidiaries to, pay any cash dividend or make any cash distribution on or in respect of the Parent Borrower’s Stock or Stock Equivalents, or purchase or otherwise acquire for cash any Stock or Stock Equivalents of the Parent Borrower or any direct or indirect holding company of the Parent Borrower, for the purpose of paying any cash dividend or making any cash distribution to, or acquiring any Stock or Stock Equivalents of the Parent Borrower or any direct or indirect holding company of the Parent Borrower for cash from, the Sponsor Group, or guarantee any Indebtedness of any Affiliate of the Parent Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Stock or Stock Equivalents to or from the Sponsor Group, in each case by means of utilization of the cumulative dividend and investment credit provided by the use of the Applicable Amount or the exceptions provided by Sections 10.5(l), 10.5(s), 10.6(c) and 10.7(a), unless at the time and after giving effect to such payment, the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 4.75 to 1.00. (i) Notwithstanding anything to the contrary contained in this Section 10 (including Section 10.5 and this Section 10.6), no Borrower will, and no Borrower will permit any of its respective non-wholly-owned Restricted Subsidiaries to, declare or pay any dividends unless the Parent Borrower or Restricted Subsidiaries receive, or shall have received, an amount at least equal to the pro rata share of such dividends that would have been paid to the Parent Borrower or any Restricted Subsidiaries if such dividends were paid based on the direct or indirect percentage ownership interest in such non-wholly-owned Restricted Subsidiary held by the Parent Borrower or by the Restricted Subsidiary that holds equity in the Restricted Subsidiary paying such dividend. For purposes of this Section 10.6(i) only, fees or royalty payments received from the applicable non-wholly owned Subsidiary by the Parent Borrower or by any Restricted Subsidiary shall also be deemed to be dividends to the extent the third-party minority owners of such non-wholly owned Subsidiary have a right to receive (and do receive) a payment, in the form of a dividend, that is not greater than the amount that would be proportional to the fee or royalty payment paid to the Parent Borrower or any Restricted Subsidiaries, based on their respective ownership interests of the third-party minority owners and the Parent Borrower or any Restricted Subsidiaries (whether direct or indirect) in such non-wholly owned Subsidiary. (j) So long as no Default or Event of Default is continuing or would result therefrom, the Parent Borrower may redeem in whole or in part any of its Stock or Stock Equivalents previously issued to any Person as consideration in connection with a Permitted Acquisition (such Stock or Stock Equivalents, the “Specified Stock Consideration”) for cash; provided that (i) the cash paid to redeem such Specified Stock Consideration, when aggregated with all other cash payments made for such Specified Stock Consideration shall not exceed the value attributed to such Specified Stock Consideration at the time of such Permitted Acquisition (with such adjustments to such valuation to give effect to any applicable currency fluctuations between the date of issuance of such Specified Stock Consideration and the date of redemption), and (ii) the issuance of such Specified Stock Consideration to such Person in connection with such Permitted Acquisition shall be deemed, for all purposes hereunder after such redemption, to have been a cash payment in respect of such Permitted Acquisition made on the date of issuance in an amount equal to the cash paid to redeem such Specified Stock Consideration.

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (ai) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or~~ with proceeds received by the Borrower from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred, is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay ~~dividends~~ Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of any Parent Entity of the Borrower, the Borrower and the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided that the aggregate amount of all cash paid in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $5,000,000 plus (ii) all Net Cash Proceeds obtained by the Borrower during such calendar year from the sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i)) (before giving effect to any carry forward) may be carried forward without duplication to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b)) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); (i) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may make Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Dividends to the Borrower and to Restricted Subsidiaries (and, in the case of a Dividend by a non-wholly-owned (disregarding general partner, managing member and other similar interests) Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on ~~its~~ their relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock ~~Equivalents~~represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases if the net cash consideration received by such Parent Entity in respect of such exercise price is promptly contributed to the Borrower; (f) the Borrower may make and pay Dividends: (i) (a) within any taxable year, equal to (I) the estimated taxable income of the Borrower allocable to such period (determined without regard to any basis adjustments under Section 734 of the Code or under Section 743 of the Code), less cumulative net taxable losses from prior taxable years (but excluding any such losses that were allocated to Persons that have ceased to be direct or indirect owners of the Borrower) to the extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken into account in determining Tax Distributions, multiplied by (II) the highest combined marginal federal, state and local income tax rate (including taxes imposed under Section 1411 of the Code) applicable to any direct or indirect owner of the Borrower during such period (the “Assumed Tax Rate”), and (b) after the end of any taxable year, equal to (I) the taxable income of the Borrower for such taxable year (determined without regard to any basis adjustments under Section 734 of the Code or under Section 743 of the Code), less cumulative net taxable losses from prior taxable years (but excluding any such losses that were allocated to Persons that have ceased to be direct or indirect owners of the Borrower) to the extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken into account in determining Tax Distributions, multiplied by the Assumed Tax Rate, minus (II) any Dividends previously made under clause (a) with respect to such taxable year; provided that the amount of all ~~such dividends paid from the Original Closing Date pursuant to this~~ Dividends under clause (ca) for a taxable year in excess of the annual tax liability determined under clause (b)(I) for such taxable year shall reduce dollar-for-dollar subsequent Dividends under clause (a) (~~other than dividends paid pursuant to clause~~ in the case of clauses (~~c)(x~~a) ~~below prior to March 31, 2015~~and (b), ~~when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct~~ which shall be payable regardless of whether a Default, Event of Default or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in non-compliance with Section ~~10.7(a)(y)(i~~10.9 shall exist) (such distributions in clauses (a) and (b), “Tax Distributions”); provided that no Tax Distribution shall ~~not retroactively cause any breach of this Section 10.6(c)~~ be made in ~~respect of dividends previously paid in compliance~~ connection with ~~this Section 10.6(c); (d)~~ the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent payment of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted SubsidiariesSpecial Dividend; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, ~~accounting~~ accounting, corporate overhead and similar expenses provided by third ~~parties~~parties and franchise and similar taxes), which are reasonable and customary and incurred in the ordinary course of business ~~and attributable to~~ (and, in the ~~ownership or operations~~ case of any Parent Entity of the Borrower, attributable to such Parent Entity’s ownership of the Borrower), in an aggregate amount not to exceed $~~3,500,000~~ 1,000,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)year; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (fv) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted by this Agreement; (vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of any Parent Entity thereof to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries; and (vii) the proceeds of which shall be used to pay any earn-out obligations in connection with the Transactions (or other similar obligations under the Purchase Agreement (including the Post Closing Purchase Price)) in each case without giving effect to any amendment to such obligations that is adverse to the interest of the Lenders or any other contractual earn-out obligations to the extent constituting a bona fide Investment made by the Borrower and/or its Restricted Subsidiaries under Section 10.5; (g) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make and pay the Special Dividend; (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends; provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) $25,000,000 plus (ii) an amount equal to the Available Amount at the time such Dividend is paid so long as in the case of this clause (ii) (A) other than with respect to the use of the portion of the Available Amount attributable to clauses (iv), (vii) and (viii) of the definition thereof, no Event of Default has occurred and is continuing or would result therefrom and (B) other than with respect to the use of the Starter Basket and the portion of the Available Amount attributable to clauses (iv), (vii) and (viii) of the definition thereof, the Borrower would be in compliance, on a Pro Forma Basis, with a First Lien Secured Leverage Ratio of no greater than 3.50:1.0 after giving effect thereto; (i) the Borrower ~~or any~~ may make additional Dividends pursuant to this clause (i) if, (A) after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with a Total Leverage Ratio as of the ~~Restricted Subsidiaries~~ most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.50:1.0 and (B) no Event of Default has occurred and is continuing or would result therefrom; (j) the Borrower may (or may make Dividends to allow any Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness of the Borrower and the Restricted Subsidiaries in accordance with its terms; (gk) the Borrower may ~~pay~~ make payments (or make Dividends to allow any ~~dividend~~ Parent Entity to make such payments) described in Sections 9.10(c), (e), (i), (j), (l) and (p) (subject to the conditions set out therein); and (l) after any initial public offering of the Capital Stock of the Borrower or ~~distribution~~ any Parent Entity of the Borrower, the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options10.6.

Appears in 1 contract

Samples: Credit Agreement (GCM Grosvenor Inc.)

Limitation on Dividends. ~~The Borrower~~ MRC will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of ~~the~~ its Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~10.2.5) any Stock or Stock Equivalents of ~~the Borrower~~MRC, now or hereafter outstanding (all of the ~~foregoing,~~ foregoing “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) ~~the Borrower~~ MRC may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) ~~the Borrower~~ MRC may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its ~~(or such parent’s)~~ Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of ~~the Borrower~~ MRC and its ~~Subsidiaries or any parent thereof~~Restricted Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements~~ agreements; provided, that the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all amounts obtained by MRC during such calendar year from the sale of such Stock or Stock Equivalents to other officers, directors and employees of MRC and its Restricted Subsidiaries in connection with any permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; provided further that the aggregate amount permitted by the foregoing proviso with respect to any calendar year commencing with 2012 shall be increased by 100% of the amount of unused share repurchases for the immediately preceding year (such amount, a “carry-over amount”) without giving effect to any carryover amount that was added in such preceding calendar year and assuming any such carry-over amount is utilized first and so long as the aggregate amount of cash paid in respect of all such shares so repurchased in any calendar year does not exceed $20,000,000; and provided still further the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year may exceed the aggregate amount permitted by the foregoing provisos if Excess Availability is not less than $100,000,000 after giving effect to such dividend, distribution or other ~~management or employee benefit plan or agreement~~return of capital; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower~~ MRC may pay dividends on its Stock or Stock Equivalents, provided that after giving effect to such payment, either (i) both (A) Excess Availability is greater than the ~~amount~~ higher of ~~all such dividends paid from~~ (1) 15% of the ~~Original Closing Date pursuant to this clause~~ Commitments and (c2) $150,000,000 and (~~other than dividends paid~~ B) the Pro Forma Consolidated Fixed Charge Coverage Ratio for the most recent Test Period for which financial statements have been delivered pursuant to clause (~~c)(x~~a) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio~~ of Section 10.1.1 is greater than ~~7.0~~ 1.0 to ~~1.0~~1.0 or (ii) Excess Availability is greater than the higher of (A) 20% of the Commitments and (B) $210,000,000, ~~$0 plus (y) if, on a Pro Forma Basis,~~ and provided further that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) foregoing test shall not ~~retroactively cause~~ apply to any ~~breach of this Section 10.6(c) in respect of~~ dividends ~~previously~~ paid ~~in compliance~~ with ~~this Section 10.6(c);~~proceeds arising from a Qualified IPO; and (d) ~~the Borrower~~ MRC may pay dividends: (i) to its direct or indirect parent in amounts sufficient for any such parent to pay its income tax obligations for so long as MRC or any Restricted Subsidiary is a member of a group filing a consolidated, combined, unitary, affiliated or other similar tax return with such parent; provided the ~~proceeds~~ amount of ~~which~~ dividends paid under this clause (i) in respect of income tax obligations is limited to the extent such tax liability is directly attributable to the taxable income of MRC or its Restricted Subsidiaries (that are included in such consolidated, combined, unitary, affiliated or other similar tax return), determined as if MRC and such Restricted Subsidiaries filed a separate consolidated, combined, unitary, affiliated or other similar tax return as a stand-alone group and will be used to pay ~~income~~ (or to make dividends to allow any direct or indirect parent to pay), within 30 days of the receipt thereof, the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of such consolidated, combined, ~~unitary~~ unitary, affiliated or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiariesother similar returns; (ii) the proceeds of which shall be used to allow any direct or indirect parent of ~~the Borrower~~ MRC to pay (A) its operating expenses incurred in the ~~ordinary course~~ Ordinary Course of ~~business~~ Business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ~~ordinary course~~ Ordinary Course of ~~business and attributable to the ownership or operations of the Borrower~~Business, in an aggregate amount not to exceed $~~3,500,000~~ 15,000,000 in any fiscal year of MRC plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ MRC (or any parent thereof) ), in each case attributable to the ownership or operations of ~~the Borrower~~ MRC and its Restricted Subsidiaries or (CB) fees and expenses otherwise (1) due and payable by ~~the Borrower~~ MRC or any of its Restricted Subsidiaries and (2) permitted to be paid by ~~the Borrower~~ MRC or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) without duplication of clause (i) above, the proceeds of which shall be used to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of MRC or its Restricted Subsidiaries, within thirty (30) days of the ~~Borrower; and~~receipt thereof; (iv) to any direct or indirect parent of ~~the Borrower~~ MRC to finance any Investment permitted to be made ~~by the Borrower or a Restricted Subsidiary~~ pursuant to Section ~~10.5~~10.2.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such ~~Investment,~~ Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to ~~the Borrower~~ MRC or ~~such~~ its Restricted ~~Subsidiary~~ Subsidiaries or (2) the merger (to the extent permitted in Section ~~10.5~~10.2.5) of the Person formed or acquired into ~~the Borrower~~ MRC or ~~any of~~ its Restricted Subsidiaries ~~and (C) the Borrower shall comply with Sections 9.11 and 9.12~~ in order to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any consummate such Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7Acquisition; and (iv) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any constituting repurchases of Stock or Stock Equivalents ~~in consideration of such payments including deemed repurchases in connection with~~ upon the cashless exercise of stock options.

Appears in 1 contract

Samples: Loan, Security and Guarantee Agreement (MRC Global Inc.)

Limitation on Dividends. ~~The~~ Parent will not, and to the extent not Parent, the Borrower will ~~not~~ not, declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or authorize or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its ~~Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ capital stock now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares but not including any convertible debt), or set aside any funds for any of the foregoing purposes, or permit any of ~~the Restricted~~ its Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any ~~Stock or Stock Equivalents~~ shares of any class of the ~~Borrower,~~ capital stock of Holdings or the Borrower now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by Holdings or the Borrower with respect to its capital stock) (all of the ~~foregoing~~foregoing "Dividends"), ~~“dividends”~~provided that so long as no Event of Default then exists in the case of clauses (i), (iii), (iv) and (vii): (ai) the Reorganization Merger shall be permitted to the extent not in violation of Section 8.02 and in connection therewith the Borrower may ~~(or may pay dividends~~ make the Reorganization Merger Payment to ~~permit any direct or indirect parent thereof to) redeem~~ Holdings with Holdings to utilize substantially all of the proceeds of such payment for the purposes described in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed therebySection 5.01L; (bii) Parent may issue shares of Parent Common Stock upon the ~~Borrower may (~~exercise of any warrants or options or upon the conversion or redemption of any convertible or redeemable preferred or preference stock, and in connection with any such exercise, conversion or redemption Parent may pay ~~dividends to permit any direct or indirect parent thereof to) repurchase~~ cash in lieu of issuing fractional shares of ~~its~~ Parent Common Stock; (iii) Parent may repurchase Parent Common Stock (and/or options or ~~such parent’s~~warrants in respect thereof) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the aggregate amount of cash paid in respect of all such ~~dividends paid from the Original Closing Date~~ repurchases in any calendar year pursuant to this clause (ciii) ~~(other than dividends paid~~ does not exceed $15,000,000 and to the extent not Parent, the Borrower may declare and pay, or otherwise effect, Dividends to Holdings to fund the repurchases made by Holdings while Parent pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (ciii); (iv) Parent may declare and pay, or otherwise effect, any other Dividend provided that, at the time it is declared, the aggregate amount of such Dividend, when added to all Dividends theretofore declared pursuant to this clause (iv) after the Closing Date shall not exceed an amount equal to the sum of (~~x)(a~~x) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0,~~ $~~200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0~~ 500,000,000 plus (y) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount~~ 50% of Cumulative Adjusted Cash Net Income plus (z) the ~~Applicable Equity Amount~~ aggregate cash proceeds (net of underwriting discounts and commissions) received by Parent after the Closing Date from issuances of its equity securities (provided that the aggregate amount of such aggregate net cash proceeds received in any twelve-month period shall be deemed not to exceed $250,000,000 for purposes of this clause (iv)(z)), in each case determined at the time of the declaration thereof, provided that such ~~time;~~ Dividend is paid within 45 days of the making of such declaration, and to the extent not Parent, the Borrower may declare and pay, or otherwise effect, Dividends to Holdings to fund the permitted Dividends that are paid by Holdings while Parent pursuant to this clause (iv), provided that (a) any Dividend declared by Holdings while Parent that is paid by Holdings after the consummation of the Spin-Off and is not funded by Dividends from the Borrower will not be included in the computation of Dividends declared by Parent for the ~~avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach~~ purposes of this ~~Section 10.6(c~~clause (iv), (b) Holdings, while Parent, may declare a Dividend for payment on or prior to July 1, 1999 in an amount not in excess of the last regularly scheduled Dividend paid by Holdings prior to the Closing Date and such Dividend (except to the extent not funded by a cash pass through dividend paid by NHC in an amount at least comparable to the dividend paid by NHC in respect of ~~dividends previously~~ such last scheduled quarterly Dividend so paid by Holdings) will not be included in ~~compliance with~~ the computation of Dividends declared by Parent for purposes of this ~~Section 10.6(c);~~ clause (div) and (c) Dividends may only be paid by Parent under this clause (iv) if at the ~~Borrower may pay dividends:~~ time of the declaration thereof the excess of (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent sum of the ~~Borrower~~ Total Unutilized Commitment and Permanent Surplus Cash, in ~~an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any~~ each case at such ~~income taxes paid directly by the Borrower or the Restricted Subsidiaries;~~ time over (ii) the ~~proceeds~~ sum of ~~which~~ the amount of such Dividends so declared and the outstanding principal or face amount of Supported CP at such time shall equal at least $225,000,000; (v) the Spin-Off shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable permitted to the ~~ownership or operations~~ extent not in violation of ~~the Borrower, not to exceed $3,500,000 in any fiscal year plus~~ Section 8.02; (Bvi) ~~any reasonable~~ Parent and ~~customary indemnification claims made by directors or officers of~~ the Borrower (if not Parent) may issue and exchange shares of any class or ~~any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any~~ series of its ~~Restricted Subsidiaries and permitted to be paid by the Borrower~~ common stock now or ~~such Restricted Subsidiary under this Agreement (including in respect~~ hereafter outstanding for shares of any ~~initial public offering); (iii) the proceeds~~ other class or series of ~~which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct~~ its common stock now or ~~indirect parent of the Borrower~~hereafter outstanding; and (ivvii) ~~to any direct or indirect parent of~~ Parent and the Borrower ~~to finance~~ (if not Parent) may, in connection with any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any reclassification of its ~~Restricted Subsidiaries~~ common stock and any exchange permitted by clause (Cvi) ~~the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i)~~ above, pay cash in lieu of issuing fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any class or series of its ~~direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as~~ common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsstock.

Appears in 1 contract

Samples: Credit Agreement (Rj Reynolds Tobacco Holdings Inc)

Limitation on Dividends. ~~The Borrower~~ MRC Global will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of ~~the~~ its Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~10.2.5) any Stock or Stock Equivalents of ~~the Borrower~~MRC Global, now or hereafter outstanding (all of the ~~foregoing,~~ foregoing “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) ~~the Borrower~~ MRC Global may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) ~~the Borrower~~ MRC Global may (~~or may pay dividends to permit any direct or indirect parent thereof to~~i) repurchase shares of its ~~(or such parent’s)~~ Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of ~~the Borrower~~ MRC Global and its ~~Subsidiaries or any parent thereof~~Restricted Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements and (ii) repurchase, redeem or otherwise acquire or retire for value Stock in lieu of withholding Taxes in connection with any exercise, vesting, settlement or exchange, as applicable, of stock options, warrants, restricted stock, restricted stock units or other ~~management~~ similar rights for such Persons; provided, that the aggregate amount of all cash paid in respect of all such shares so repurchased, redeemed or ~~employee benefit plan~~ otherwise acquired or ~~agreement~~retired in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all amounts obtained by MRC Global during such calendar year from the sale of such Stock or Stock Equivalents to other officers, directors and employees of MRC Global and its Restricted Subsidiaries in connection with any permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; provided further that the aggregate amount permitted by the foregoing proviso with respect to any calendar year commencing with 2012 shall be increased by 100% of the amount of unused share repurchases for the immediately preceding year (such amount, a “carry-over amount”) without giving effect to any carryover amount that was added in such preceding calendar year and assuming any such carry-over amount is utilized first and so long as the aggregate amount of cash paid in respect of all such shares so repurchased, redeemed or otherwise acquired or retired in any calendar year does not exceed $20,000,000; and provided still further that the aggregate amount of all cash paid in respect of all such shares so repurchased, redeemed or otherwise acquired or retired in any calendar year may exceed the aggregate amount permitted by the foregoing provisos if Excess Availability is not less than $100,000,000 after giving effect to such dividend, distribution or other return of capital; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower~~ MRC Global may pay dividends on its Stock or Stock Equivalents, provided that after giving effect to such payment, either (i) both (A) Excess Availability is greater than the ~~amount~~ higher of ~~all such dividends paid from~~ (1) 15% of the ~~Original Closing Date pursuant to this clause~~ Commitments and (c2) $126,000,000 and (~~other than dividends paid~~ B) the Pro Forma Consolidated Fixed Charge Coverage Ratio for the most recent Test Period for which financial statements have been delivered pursuant to clause (~~c)(x~~a) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio~~ of Section 10.1.1 is greater than ~~7.0~~ 1.0 to ~~1.0,~~ 1.0 or (ii) Excess Availability is greater than the higher of (A) 20% of the Commitments and (B) $~~0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time~~176,400,000; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c);and (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower MRC Global may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any constituting repurchases of Stock or Stock Equivalents ~~in consideration of such payments including deemed repurchases in connection with~~ upon the cashless exercise of stock options.

Appears in 1 contract

Samples: Loan, Security and Guarantee Agreement (MRC Global Inc.)

Appears in 1 contract

Samples: Credit Agreement (Vistra Corp.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”): (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~x) $400,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, to the payment of such dividend,the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 1 contract

Samples: Credit Agreement (First Data Corp)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “Dividends” or “dividends”):); provided that, in the case of clauses (b), (c), (f) and (g) below, so long as no Event of Default has occurred and is continuing or would result therefrom: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, ; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~ii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Borrower to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct or indirect~~ for the relevant jurisdiction of such parent of attributable to the Borrower ~~in an amount not to exceed the income tax liability of~~ or its Restricted Subsidiaries determined as if the Borrower and ~~the~~ its Restricted Subsidiaries ~~were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~filed separately; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 50,000,000 in any fiscal year of the Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and ~~permitted~~ not prohibited to be paid by the Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment ~~permitted~~ not prohibited to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent ~~permitted~~ not prohibited in Section 10.5) of the Person formed or acquired into the Borrower or ~~any of~~ its Restricted Subsidiaries and (C) ~~the~~ Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [~~Reserved~~reserved]; (f) the Borrower ~~or any~~ may pay dividends so long as the Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~Restricted Subsidiaries may (i) pay cash in lieu~~ last day of ~~fractional shares in connection with any~~ the most recent Test Period for which Section 9.1 Financials have been delivered is less than or equal to 4.25:1.00, determined on a Pro Forma Basis after giving effect to such dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) Dividends that are made (a) in an amount that does not exceed the amount of Excluded Contributions made since the Fifth Restatement Effective Date that is not otherwise applied pursuant to Section 10.1(n)(B) or Section 10.2(c) as in effect immediately prior to such Dividend (and after giving Pro Forma Effect thereto) or (b) in an amount equal to the amount of net cash proceeds from an asset sale or disposition in respect of property or assets acquired, if the acquisition of such property or assets was financed with Excluded Contributions; and (h) the Borrower may ~~pay~~ make any payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration ~~thereof~~of such dividend or other distribution or giving of the redemption notice with respect to such redemption, as the case may be, if at the date of declaration or notice, the payment of such ~~payment~~ dividend or other distribution or in respect of such redemption, as the case may be, would have complied with the provisions of this ~~Agreement;~~ Agreement (~~h) the Borrower may declare~~ and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such ~~public offering~~ dividend, distribution or redemption shall be deemed to have utilized the ~~extent such net proceeds are not utilized~~ applicable other exception set forth above in ~~connection with other transactions permitted by~~ this Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options10.6).

Appears in 1 contract

Samples: Restatement Agreement (HCA Healthcare, Inc.)

Limitation on Dividends. ~~The Borrower~~ Holdings will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the ~~Borrower,~~ capital stock of Holdings now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing,~~ foregoing “dividends”): ); provided that so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its capital stock; provided that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) ~~the Borrower~~ Holdings may ~~(or may~~ declare and pay dividends and/or make distributions to ~~permit any direct or indirect parent thereof to)~~ Parent, to enable Parent to repurchase shares of its capital stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its capital stock) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates~~directors and employees of Parent, ~~estates or immediate family members) of the~~ Holdings, each Borrower and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower~~ Holdings may declare and pay dividends on its ~~Stock or Stock Equivalents,~~ capital stock; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time~~; for the avoidance of doubt~~, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower Holdings may declare and pay dividends ~~on the Borrower’s common stock following the first public offering~~ and/or make distributions to Parent, solely to pay administrative and similar expenses related to ownership of the ~~Borrower’s common stock or~~ Borrowers and Holdings; provided that the ~~common stock~~ amount of such dividends does not exceed in any fiscal year the amount of ~~its direct or indirect parents after~~ such expenses payable for such fiscal year (it being understood that such expense shall in no event exceed $1,000,000 in the ~~Original Closing Date, of up to 6%~~ aggregate per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and fiscal year) and (ie) ~~the Borrower~~ Holdings may declare and pay dividends ~~in an~~ and/or make distributions to Parent to pay taxes related to Parent’s existence or to ownership or operations of Borrowers and Holdings; provided that the amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases~~ dividends does not exceed in ~~connection with~~ any fiscal year the ~~exercise~~ amount of ~~stock options~~such taxes payable for such fiscal year.

Appears in 1 contract

Samples: Credit Agreement (Premdor Finace LLC)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any Stock or Stock Equivalents of the Parent Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent ~~thereof to~~thereof) in an aggregate amount, when combined with amounts paid pursuant to Section 10.5(j), not to exceed $25,000,000 in any Fiscal Year, to repurchase ~~shares of~~ its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Parent Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original Closing~~ Restatement Effective Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (i) all aggregate principal amounts paid pursuant to Section ~~10.7(a)(y)(i~~10.7(a) from the ~~2014 July Repricing~~ Restatement Effective Date and (ii) (A) all loans and advances made to any direct or indirect ~~parent~~ holding company of the Parent Borrower pursuant to Section ~~10.5(m~~10.5(l) in lieu of dividends permitted by this clause (c) and (B) all Investments made pursuant to Section 10.5(s), shall not exceed an amount equal to (~~x)(a~~x) ~~if,~~ (I) at any time at which the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 5.50 to 1.00 but greater than 5.00 to 1.00 (giving effect on a Pro Forma ~~Basis~~Basis to such dividend) $75,000,000, or (II) at any time at which the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 5.00 to 1.00 (giving effect on a Pro Forma Basis to such dividend), $150,000,000) plus (y) the Applicable Equity Amount plus (z) to the extent the Consolidated Total Debt to Consolidated EBITDA Ratio is ~~less~~ not greater than ~~7.0~~ 5.50 to ~~1.0~~1.00, ~~$200,000,000 or (b) if~~both before and after giving effect, on a Pro Forma Basis, to the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0~~payment of such dividend, the Applicable Amount ~~plus (z)~~ at the ~~Applicable Equity Amount at~~ time such ~~time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of~~ dividends ~~previously paid in compliance with this Section 10.6(c)~~are paid; (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect ~~parent~~ holding company of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the ~~Borrower~~Parent Borrower or its Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (~~iii~~ii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect ~~parent~~ holding company of the Parent Borrower that holds no material assets other than Stock in the Parent Borrower~~; and~~; (iviii) (A) to any direct or indirect ~~parent~~ holding company of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (Ax) such dividend shall be made substantially concurrently with the closing of such Investment, (By) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or any of its Restricted Subsidiaries and (Cz) the Parent Borrower shall comply with Sections 9.11 and 9.12 to the extent ~~applicable~~applicable and (B) to Holdings to enable Holdings to make any Investment in any Affiliate of the Parent Borrower that is controlled by Holdings; provided that (x) such dividend shall be made substantially concurrently with the closing of such Investment and (y) the aggregate amount of dividends paid pursuant to this clause (d)(iii)(B), when aggregated with the aggregate amount of outstanding Investments made pursuant to Section 10.5(v), shall not exceed $25,000,000; (iv) the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition permitted by this Agreement payable by the Parent Borrower or its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or its Restricted Subsidiaries by this Agreement; (v) for any period during which the Parent Borrower is a member of a group filing a consolidated, combined or unitary tax return with a direct or indirect holding company, dividends the proceeds of which will be used to pay Taxes to the extent such Taxes are attributable to the income of the Parent Borrower and its Subsidiaries, in amounts not to exceed the amount of the relevant Taxes (including any penalties and interest) that the Parent Borrower would owe if the Parent Borrower were filing a separate tax return (or a separate consolidated, combined or unitary return with its Subsidiaries that are members of the consolidated, combined or unitary group); and (vi) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of any direct or indirect parent company of the Parent Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and its Restricted Subsidiaries; provided, that the amount of all dividends made pursuant to this clause (d)(vi) shall be deemed to be a cash labor expense of the Parent Borrower (and shall be deducted from Consolidated Net Income); provided, further, that the aggregate amount of dividends made pursuant to this clause (d)(vi) shall not exceed $1,000,000 in any Fiscal Year; (e) ~~[Reserved]; (f)~~ the Parent Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gf) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Parent Borrower may declare and pay dividends on the Parent Borrower’s common stock following the first public offering of the Parent Borrower’s common stock or the common stock of any of its direct or indirect parents after the ~~Original Closing~~ Restatement Effective Date, of up to 6% per annum of the net proceeds received by or contributed ~~as common equity~~ to the Parent Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (ig) the Parent Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options. (h) Notwithstanding anything to the contrary contained in this Section 10 (including Section 10.5 and this Section 10.6), no Borrower will, and no Borrower will permit any of its respective Restricted Subsidiaries to, pay any cash dividend or make any cash distribution on or in respect of the Parent Borrower’s Stock or Stock Equivalents, or purchase or otherwise acquire for cash any Stock or Stock Equivalents of the Parent Borrower or any direct or indirect holding company of the Parent Borrower, for the purpose of paying any cash dividend or making any cash distribution to, or acquiring any Stock or Stock Equivalents of the Parent Borrower or any direct or indirect holding company of the Parent Borrower for cash from, the Sponsor Group, or guarantee any Indebtedness of any Affiliate of the Parent Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Stock or Stock Equivalents to or from the Sponsor Group, in each case by means of utilization of the cumulative dividend and investment credit provided by the use of the Applicable Amount or the exceptions provided by Sections 10.5(l), 10.5(s), 10.6(c) and 10.7(a), unless at the time and after giving effect to such payment, the Consolidated Total Debt to Consolidated EBITDA Ratio would be equal to or less than 5.50 to 1.00. (i) Notwithstanding anything to the contrary contained in this Section 10 (including Section 10.5 and this Section 10.6), no Borrower will, and no Borrower will permit any of its respective non-wholly-owned Restricted Subsidiaries to, declare or pay any dividends unless the Parent Borrower or Restricted Subsidiaries receive, or shall have received, an amount at least equal to the pro rata share of such dividends that would have been paid to the Parent Borrower or any Restricted Subsidiaries if such dividends were paid based on the direct or indirect percentage ownership interest in such non-wholly-owned Restricted Subsidiary held by the Parent Borrower or by the Restricted Subsidiary that holds equity in the Restricted Subsidiary paying such dividend. For purposes of this Section 10.6(i) only, fees or royalty payments received from the applicable non-wholly owned Subsidiary by the Parent Borrower or by any Restricted Subsidiary shall also be deemed to be dividends to the extent the third-party minority owners of such non-wholly owned Subsidiary have a right to receive (and do receive) a payment, in the form of a dividend, that is not greater than the amount that would be proportional to the fee or royalty payment paid to the Parent Borrower or any Restricted Subsidiaries, based on their respective ownership interests of the third-party minority owners and the Parent Borrower or any Restricted Subsidiaries (whether direct or indirect) in such non-wholly owned Subsidiary. (j) So long as no Default or Event of Default is continuing or would result therefrom, the Parent Borrower may redeem in whole or in part any of its Stock or Stock Equivalents previously issued to any Person as consideration in connection with a Permitted Acquisition (such Stock or Stock Equivalents, the “Specified Stock Consideration”) for cash; provided that (i) the cash paid to redeem such Specified Stock Consideration, when aggregated with all other cash payments made for such Specified Stock Consideration shall not exceed the value attributed to such Specified Stock Consideration at the time of such Permitted Acquisition (with such adjustments to such valuation to give effect to any applicable currency fluctuations between the date of issuance of such Specified Stock Consideration and the date of redemption), and (ii) the issuance of such Specified Stock Consideration to such Person in connection with such Permitted Acquisition shall be deemed, for all purposes hereunder after such redemption, to have been a cash payment in respect of such Permitted Acquisition made on the date of issuance in an amount equal to the cash paid to redeem such Specified Stock Consideration.

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent ~~now~~ outstanding as of the Original Closing Date or ~~hereafter~~ thereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Parent Borrower, ~~now~~ outstanding as of the Original Closing Date or ~~hereafter~~ thereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its (or such parent’s) Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents~~Equivalents (other than any amount received by the Parent Borrower in satisfaction of the requirements of the first sentence of Section 10.7(d)), provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Parent Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x), the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Parent Borrower to pay) (A) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns for the relevant jurisdiction of such parent attributable to the Parent Borrower or its Restricted Subsidiaries determined as if the Parent Borrower and its Restricted Subsidiaries filed by separately and (B) for as long as Holdings is a direct or indirect parent of the Parent Borrower, distributions equal to any taxable income of Holdings resulting from the hedging arrangements entered into by Holdings on or about September 13, 2006 and with respect to which the Parent Borrower ~~in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as~~ will be a ~~stand-alone group, reduced~~ counterparty multiplied by ~~any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~45%; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Parent Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any of its direct or indirect parent of the Parent Borrower~~; and~~; (iv) to any direct or indirect parent of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or ~~any of~~ its Restricted Subsidiaries and (C) the Parent Borrower shall comply with ~~Sections~~ Section 9.11 ~~and 9.12~~ to the extent applicable;; and (e) ~~[Reserved]; (f)~~ the Parent Borrower ~~or any~~ may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the ~~Restricted Subsidiaries may~~ date of issuance of any Qualified Holdings Debt, solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends, (i) ~~pay cash~~ the Parent Borrower shall be in ~~lieu~~ compliance with the covenant set forth in Section 10.9 of ~~fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition~~ the CF Agreement for the most recently ended Test Period and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the ~~Borrower may pay any dividend~~ Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to ~~withholding or similar Taxes payable or expected~~ 1.75 to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with 1.00 for the ~~exercise of stock options~~most recently ended Test Period.

Appears in 1 contract

Samples: Credit Agreement (Hca Inc/Tn)

Limitation on Dividends. The Borrower will ~~not~~ not, declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or make, declare or otherwise authorize any return ~~any~~ of capital to its ~~stockholders (including any option holders)~~ shareholders or ~~make~~ make, declare or otherwise authorize any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its ~~Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ capital stock now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares but not including any convertible debt), or set aside any funds for any of the foregoing purposes, or permit any of ~~the Restricted~~ its Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any ~~Stock or Stock Equivalents~~ shares of any class of the ~~Borrower,~~ capital stock of the Borrower now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by the Borrower with respect to its capital stock) (all of the ~~foregoing~~foregoing made, ~~“dividends”~~declared or authorized after the Original Effective Date, "Dividends"), provided that so long as no Event of Default then exists in the case of clauses (i), (ii), (iii), (v), (vi) and (vii): (ai) the Borrower may (issue shares of Borrower Common Stock upon the exercise of any warrants or options or upon the conversion or redemption of any convertible or redeemable preferred or preference stock, and in connection with any such exercise, conversion or redemption the Borrower may pay ~~dividends to permit any direct or indirect parent thereof to) redeem~~ cash in ~~whole or in part any~~ lieu of ~~its Stock or Stock Equivalents for another class~~ issuing fractional shares of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed therebyBorrower Common Stock; (bii) the Borrower may repurchase Borrower Common Stock (and/or options or ~~may pay dividends to permit any direct or indirect parent thereof to~~warrants in respect thereof) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the aggregate amount of cash paid in respect of all such ~~dividends paid from the Original Closing Date~~ repurchases in any calendar year pursuant to this clause (cii) does not exceed $20,000,000; (iii) the Borrower may declare and pay, or otherwise pay or make, any other Dividend, provided that, at the time it is, in the case of a Non-Declared Dividend, paid or made and, in the case of any other Dividend, declared or otherwise authorized, the aggregate amount of such Dividend, when added to all Non-Declared Dividends theretofore paid or made and any other Dividends theretofore declared or otherwise authorized (or paid) pursuant to this Section 8.05(iii) (~~other than dividends paid pursuant to~~ and clause (~~c)(x~~iii) ~~below prior to March 31, 2015~~of Section 8.05 of the Original Credit Agreement or the First Amended and Restated Credit Agreement), ~~when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from~~ after the ~~2014 July Repricing~~ Original Effective Date ~~and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c)~~ shall not exceed an amount equal to the sum of (~~x)(a~~x) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0,~~ $~~200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0~~ 500,000,000 plus (y) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount~~ 50% of Cumulative Adjusted Cash Net Income plus (z) the ~~Applicable Equity Amount at~~ aggregate cash proceeds (net of underwriting discounts and commissions) received by the Borrower after the Original Effective Date from issuances of its equity securities (provided that the aggregate amount of such ~~time;~~ aggregate net cash proceeds received in any twelve-month period shall be deemed not to exceed $250,000,000 for ~~the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach~~ purposes of this Section ~~10.6(c~~8.05(iii)), in each case determined at, in the case of a Non-Declared Dividend, the date paid or made and, in the case of any other Dividend, the date declared or otherwise authorized, provided that such Dividend (other than a Dividend that is a Non-Declared Dividend) ~~in respect~~ is paid within 90 days of ~~dividends previously~~ the making of such declaration or other authorization, provided further that Dividends may only be paid ~~in compliance with this Section 10.6(c); (d)~~ or made by the Borrower ~~may pay dividends:~~ under this clause (iii) if at the time of, in the case of a Non-Declared Dividend, the date paid or made and, in the case of any other Dividend, the date declared or otherwise authorized, the excess of (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent sum of the ~~Borrower~~ Total Unutilized Commitment and Permanent Surplus Cash, in ~~an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group~~each case at such time, ~~reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries;~~ over (ii) the ~~proceeds~~ sum of ~~which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its operating expenses incurred~~ the amount of, in the ~~ordinary course~~ case of ~~business and~~ a Non-Declared Dividend, the aggregate amount of such Non-Declared Dividend plus any other ~~corporate overhead costs and expenses (including administrative~~Dividends theretofore declared or otherwise authorized but then unpaid and, ~~legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred~~ in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect case of any ~~initial public offering); (iii)~~ other Dividend, the ~~proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct~~ amount thereof so declared or ~~indirect parent of the Borrower;~~ otherwise authorized and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 1 contract

Samples: Credit Agreement (Rj Reynolds Tobacco Holdings Inc)

Limitation on Dividends. The Borrower will not declare or pay any dividends ~~(other than dividends payable solely in its Qualified Equity Interests)~~ or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders ~~as such~~on account of such Stock and Stock Equivalents, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or ~~the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or~~ set aside any funds for any of the foregoing purposes, ~~or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration~~ (other than dividends payable solely in ~~connection with an Investment permitted by Section 10.5) any~~ its Stock or Stock Equivalents ~~of the Borrower, now or hereafter outstanding~~ (other than Disqualified Stock)) (all of the foregoing, “dividends”):), provided: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents,~~ Equivalents (other than any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(b)(i)); provided that (i) such new Stock or Stock Equivalents contain terms and provisions (taken as a whole) at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby~~thereby and (ii) the cash proceeds from any such contribution or issuance shall not increase the Applicable Equity Amount; (b) subject to the last paragraph of this Section 10.6, the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or ~~shareholder agreements~~ stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 10.6(b), when combined with Investments made pursuant to Section 10.5(k), do not exceed, on and after the First Amendment Effective Date, in any calendar year $10,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $20,000,000 in any calendar year, the greatest of (x) $20,000,000, (y) 15% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) and (z) 1.25% of Consolidated Total Assets as of the last day of the most recently ended Test Period (calculated on a Pro Forma Basis); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds from the sale of Stock (other than Disqualified Stock, any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(a)) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies) or any Subsidiary of the Borrower that occurs after the Closing Date; provided that such Stock or proceeds of such Stock will not increase the Applicable Equity Amount; plus (ii) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (iii) the amount of any dividends or distributions previously made with the cash proceeds described in clauses (i) and (ii) above; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies), or any Subsidiary of the Borrower in connection with a repurchase of Stock or Stock Equivalents of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that~~subject to the last paragraph of this Section 10.6, so long as ~~(other than with respect to clause (c)(z) below)~~ no ~~Default or~~ Event of Default ~~exists~~ under Section 11.1 or Section 11.5 shall have occurred and be continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (zx) the Applicable Equity Amount at the time such dividends are paid plus (y) the Applicable Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may ~~pay~~ make dividends, distributions or loans to any direct or indirect parent company (or, in the case of clause (d)(vii), any member) of the Borrower in amount required for any such direct or indirect parent to pay, in each case without duplication: (i) foreign, federal, state and local income Taxes, to the ~~proceeds of which will be used to pay~~ extent such income ~~tax liability~~ Taxes are attributable to the income of the Borrower and its Subsidiaries; provided that for purposes of this Section 10.6(d)(i), such Taxes shall be deemed to equal the ~~Restricted~~ excess of (a) the amount that the Borrower and its Subsidiaries would be required to pay in respect of foreign, federal, state and local income Taxes if the Borrower were the parent of a standalone consolidated, combined, affiliated, unitary or ~~affiliated~~ similar income tax ~~returns filed~~ group including its Subsidiaries over (b) the amount of such income Taxes paid by ~~a direct or indirect parent of~~ the Borrower ~~in an amount not~~ and/or any of its Subsidiaries to ~~exceed~~ the applicable Governmental Authority on behalf of such parent or that otherwise reduce the income tax liability of such parent (but solely to the ~~Borrower and~~ extent of such reduction); provided, further, that the ~~Restricted Subsidiaries were they~~ permitted payment pursuant to ~~file as a stand-alone group, reduced~~ this clause (i) with respect to any taxes of any Unrestricted Subsidiary or Excluded Project Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by ~~any~~ such ~~income taxes paid directly by~~ Unrestricted Subsidiary or Excluded Project Subsidiary to the Borrower or its Restricted Subsidiaries for the ~~Restricted Subsidiaries~~purposes of paying such taxes; (ii) ~~the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its~~ such parents’ and their respective Subsidiaries’ general operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties~~), which~~ ) to the extent such costs and expenses are ~~reasonable and customary and incurred in the ordinary course of business and~~ attributable to the ownership or ~~operations~~ operation of the ~~Borrower~~Borrower and its Restricted Subsidiaries and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any ~~reasonable and customary~~ indemnification claims made by directors or officers of the Borrower (or any parent thereof) to the extent such claims are attributable to the ownership or ~~operations~~ operation of the Borrower or any Restricted Subsidiary and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower (or any ~~of its~~ parent thereof and such parent’s Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary and ~~permitted~~ not prohibited to be paid by the Borrower ~~or such~~ and its Restricted ~~Subsidiary under this Agreement (including in respect of any initial public offering)~~Subsidiaries hereunder; (iii) ~~the proceeds of which shall be used to pay~~ franchise and excise ~~taxes~~ Taxes and other fees, ~~taxes~~ Taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower~~; and~~; (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a any Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the ~~merger~~ merger, amalgamation or consolidation (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any Restricted Subsidiary, (C) the Borrower or such Restricted Subsidiary shall comply with Section 9.11 and Section 9.12 to the extent applicable, (D) the aggregate amount of such dividends shall reduce the ability of the Borrower and the Restricted Subsidiary to make Investments under the applicable clauses of Section 10.5 by such amount and (E) any property received in connection with such transaction shall not increase the Applicable Equity Amount; (v) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition or disposition transaction payable by the Borrower or the Restricted Subsidiaries; (vi) customary salary, bonus, severance and other benefits payable to officers, employees or consultants of any direct or indirect parent company (and such parent’s Subsidiaries) of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower, its Restricted Subsidiaries and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries; (vii) with respect to any taxable period (or portion thereof) for which the Borrower is a passthrough entity (including a partnership or disregarded entity) for U.S. federal income tax purposes and is not wholly owned (directly or indirectly) by an entity that is taxable as a corporation for U.S. federal income tax purposes, dividends or distributions by the Borrower to any member of the Borrower, on or prior to each estimated tax payment date as well as each other applicable due date, on a pro rata basis in accordance with any direct or indirect member’s percentage interest, such that each direct or indirect member receives, in the aggregate for such period, payments or distributions sufficient to equal such member’s U.S. federal, state and local income taxes attributable to its direct or indirect ownership of the Borrower and its Subsidiaries with respect to such period (assuming that such member is subject to tax at the highest combined marginal U.S. federal, state and local income tax rates (including any tax imposed on “net investment income” by Section 1411 of the Code)) applicable to an individual or, if higher, a corporation resident in New York, New York, determined by (A) taking into account (1) any items of income, gain, loss or deduction allocated pursuant to Section 704(c) of the Code, (2) the alternative minimum tax, (3) losses allocated to such member solely for the taxable period with respect to which the dividend or distribution relates on account of such member’s direct or indirect ownership of the Borrower and its Subsidiaries (taking into account such losses only to the extent usable by such member, assuming that such member has no assets other than such member’s direct or indirect equity interest in the Borrower and its Subsidiaries and has no income or losses other than those with respect to the Borrower and its Subsidiaries), (4) the character of the applicable income (e.g., ordinary income or capital gains) and (5) any adjustment to such member’s taxable income attributable to its direct or indirect ownership of the Borrower and its Subsidiaries as a result of any tax examination, audit or adjustment with respect to any taxable period (or portion thereof), (B) assuming a full limitation on the deductibility of applicable state and local income taxes for U.S. federal income tax purposes and any other applicable limitations on deductions and losses and (C) not taking into account any deductions attributable to Section 199A of the Code or adjustments pursuant to Section 743 of the Code; provided that (a) if the aggregate amount of distributions made to a member with respect to a taxable year permitted by this Section 10.6(d)(vii) exceeds the amount of distributions that would be permitted for such taxable year as determined based on the results for such entire taxable year (applying the same principles as otherwise set forth in this Section 10.6(d)(vii)), then such excess shall be credited against (and reduce) the next amounts that otherwise would be permitted to be distributed pursuant to this Section 10.6(d)(vii) and (b) if the amount of distributions that would be permitted for a taxable year as determined based on the results for such entire taxable year (applying the same principles as otherwise set forth in this Section 10.6(d)(vii)) exceeds the aggregate amount of distributions made to a member with respect to such taxable year pursuant to this Section 10.6(d)(vii), then such excess shall be permitted to be distributed to the member pursuant to this Section 10.6(d)(vii); (viii) [reserved]; (ix) AHYDO Catch-Up Payments with respect to Indebtedness of any direct or indirect parent of the Borrower; provided that the proceeds of such Indebtedness have been contributed to the Borrower as a capital contribution; and (x) expenses incurred by any direct or indirect parent of the Borrower in connection with any public offering or other sale of Stock or Stock Equivalents or Indebtedness (i) where the net proceeds of such offering or sale are intended to be received by or contributed to the Borrower or a Restricted Subsidiary, (ii) in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or (iii) otherwise on an interim basis prior to completion of such offering so long as any direct or indirect parent of the Borrower shall ~~comply with Sections 9.11 and 9.12~~ cause the amount of such expenses to be repaid to the ~~extent applicable~~Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed; (e) [~~Reserved~~reserved]; (f) dividends consisting of or resulting from Liens, fundamental changes, Dispositions, Investments or other payments permitted by 10.2, 10.3 (other than Section 10.3(j)), 10.4 (other than Section 10.4(d)), 10.5 (other than Section 10.5(l)) or 10.8, as applicable; (g) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Stock or Stock Equivalents represents a portion of the ~~Restricted Subsidiaries~~ exercise price of such options or warrants, and the Borrower may pay dividends to any direct or indirect parent thereof as and when necessary to enable such parent to effect such repurchases; (h) the Borrower may (i) pay cash in lieu of fractional shares in connection with any dividend, ~~split~~ distribution, split, reverse share split, merger, consolidation, amalgamation or other combination thereof or any Permitted ~~Acquisition~~ Acquisition, and any dividend to the Borrower’s direct or indirect parent in order to effect the same and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gi) the Borrower may pay any dividend or distribution within 60 90 days after the date of declaration thereof or giving irrevocable notice thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.a

Appears in 1 contract

Samples: Credit Agreement (Vistra Corp.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock or Stock Equivalents (other than Disqualified Stock)) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the ~~Borrower,~~ Borrower now or hereafter outstanding (all of the foregoing, “dividends”):), provided: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that (i) such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby~~thereby and (ii) the cash proceeds from any such contribution or issuance have not otherwise been applied pursuant to the Applicable Equity Amount; (b) so long as no Default or Event of Default shall have occurred and is continuing or would result therefrom, the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or ~~shareholder agreements~~ stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 10.6(b) do not exceed in any calendar year $25,000,000 (which shall increase to $50,000,000 subsequent to the consummation of an underwritten public offering of Stock by the Borrower (or any direct or indirect parent thereof) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $75,000,000 in any calendar year (which shall increase to $150,000,000 subsequent to the consummation of an underwritten public offering of Stock by the Borrower or any direct or indirect parent corporation of the Borrower)); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds from the sale of Stock (other than Disqualified Stock) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies) or any Subsidiary of the Borrower that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Stock have not otherwise been applied pursuant to the Applicable Equity Amount; plus (ii) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (iii) the amount of any dividends or distributions previously made with the cash proceeds described in clauses (i) and (ii) above; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies), or any Subsidiary of the Borrower in connection with a repurchase of Stock or Stock Equivalents of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no Default or Event of Default ~~exists~~ shall have occurred and is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (i) all aggregate principal amounts paid pursuant to Section ~~10.7(a)(y)(i~~10.7(a)(i) from the ~~2014 July Repricing Effective~~ Closing Date and (ii) (A) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) and (B) all Investments made pursuant to Section 10.5(v), shall not exceed an amount equal to (~~x)(a~~x) if$500,000,000 plus (y) the Applicable Equity Amount at the time such dividends are paid plus (z) to the extent the Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis, to the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0making of such dividend, the Applicable Amount ~~plus (z) the Applicable Equity Amount~~ at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may ~~pay dividends~~make loans to any direct or indirect parent company of the Borrower in amount required for any such direct or indirect parent to pay, in each case without duplication: (i) ~~the proceeds of which will be used to pay~~ foreign, federal, state and local income ~~tax liability attributable~~ taxes (including any amounts reimbursable to the ~~Borrower and the Restricted~~ Oncor Subsidiaries in respect of ~~consolidated~~such taxes pursuant to a tax sharing agreement), ~~combined~~to the extent such income taxes are attributable to the income of (A) the Parent and its Subsidiaries (other than the Oncor Subsidiaries) and (B) the Oncor Subsidiaries, ~~unitary~~ to the extent that the Oncor Subsidiaries have not reimbursed the Parent or ~~affiliated tax returns filed by a~~ such direct or indirect parent company of the Borrower for such payments in an amounts required to pay such taxes; provided that the amount of such payments in any fiscal year does not to exceed the ~~income~~ amount that the Parent and its Subsidiaries are required to pay (including any amounts reimbursable to the Oncor Subsidiaries in respect of such taxes pursuant to a tax ~~liability~~ sharing agreement) in respect of ~~the Borrower~~ foreign, federal, state and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such~~ local income taxes ~~paid directly by the Borrower or the Restricted Subsidiaries;~~for such fiscal year. (ii) ~~the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its~~ such parents’ and their respective Subsidiaries’ (other than the Oncor Subsidiaries) general operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such ~~net proceeds~~ costs and expenses are ~~not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and~~ attributable to (i1) the ~~Borrower may pay dividends in an amount equal to withholding~~ ownership or ~~similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant~~ operation of the Parent and its Subsidiaries (~~or their respective Affiliates, estates or immediate family members~~other than the Oncor Subsidiaries) ~~and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.~~or

Appears in 1 contract

Samples: Credit Agreement (Energy Future Competitive Holdings CO)

Appears in 1 contract

Samples: Credit Agreement (GCM Grosvenor Inc.)

Limitation on Dividends. The Borrower will not, and will not ~~declare~~ permit any of its Subsidiaries to, declare, pay or ~~pay~~ otherwise authorize any dividends (other than dividends payable solely in ~~its Qualified~~ non-redeemable common stock or comparable common Equity ~~Interests~~Interests of the Borrower or any such Subsidiary, as the case may be) or return any equity capital to to, its ~~stockholders (including any option holders)~~ stockholders, partners, members or other equityholders or declare, authorize or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ stockholders, partners, members or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its ~~Stock~~ capital stock or ~~Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ other Equity Interests, now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the foregoing purposes, or and the Borrower will not and will not permit any of ~~the Restricted~~ its Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any ~~Stock or Stock Equivalents~~ shares of any class of the ~~Borrower~~capital stock or other Equity Interests of the Borrower or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~except that: (ai) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower, and (or ii) any non-Wholly-Owned Subsidiary of the Borrower may pay ~~dividends~~ cash Dividends to ~~permit any direct~~ its shareholders generally so long as the Borrower or ~~indirect parent thereof to) redeem~~ its respective Subsidiary which owns the Equity Interest in ~~whole or in part any of its Stock or Stock Equivalents for another class of its (or~~ the Subsidiary paying such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions Dividends receives at least ~~as advantageous to~~ its proportionate share thereof (based upon its relative holding of the ~~Lenders in all respects material to their interests as those contained~~ Equity Interests in the ~~Stock or Stock Equivalents redeemed thereby~~Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary); (b) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to) repurchase~~ issue shares of ~~its (~~Borrower Common Stock upon the exercise of any warrants or options or upon the conversion or redemption of any convertible or redeemable preferred or preference stock, and in connection with any such ~~parent’s) Stock~~ exercise, conversion or ~~Stock Equivalents held by any present or former officer~~redemption, ~~director or employee (or their respective Affiliates, estates or immediate family members) of~~ the Borrower ~~and its Subsidiaries or any parent thereof~~may, so long as ~~such~~ no Event of Default then exists or would result therefrom, pay cash in lieu of issuing fractional shares of Borrower Common Stock; (c) so long as no Event of Default then exists or would result therefrom, the Borrower may repurchase is Borrower Common Stock (and/or options or warrants in respect thereof) pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the aggregate amount of cash paid in respect of all such ~~dividends paid from the Original Closing Date~~ repurchases in any calendar year pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall does not exceed ~~an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0,~~ $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)40,000,000; (d) the Borrower may declare and pay, or otherwise pay ~~dividends:~~ or make, any other Dividend, so long as (i) ~~the proceeds~~ no Event of ~~which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated~~Default then exists or would result therefrom, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) on the ~~proceeds~~ date such Dividend is paid or made (in the case of ~~which shall be used to allow~~ a Non-Declared Dividend) or declared or otherwise authorized (in the case of any ~~direct or indirect parent of~~ other Dividend), the Borrower is in compliance with the covenants contained in Sections 8.07 and 8.08 for the Calculation Period most recently ended prior to ~~pay~~ such date, on a Pro Forma Basis, as if the respective Dividend to be paid, made, declared or authorized had been paid (Aand any Indebtedness incurred (or to be incurred) ~~its operating expenses~~ to finance the same had been incurred ~~in the ordinary course of business~~ and any other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable event requiring pro forma effect pursuant to the ~~ownership or operations~~ definition of “Pro Forma Basis” had occurred) on the ~~Borrower~~first day of such Calculation Period, ~~not to exceed $3,500,000 in any fiscal year plus (B) any reasonable~~ and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) in the ~~proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence~~ case of any ~~direct or indirect parent~~ Dividend (other than a Non-Declared Dividend), such Dividend is paid within 90 days of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing making of such ~~Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock~~ declaration or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicableother authorization; (e) ~~[Reserved];~~the Borrower may issue and exchange shares of any class or series of its common stock now or hereafter outstanding for shares of any other class or series of its common stock now or hereafter outstanding; and (f) the Borrower or may, in connection with any reclassification of ~~the Restricted Subsidiaries may~~ its common stock and any exchange permitted by clause (ie) above, pay cash in lieu of issuing fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any class or series of its ~~direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as~~ common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsstock.

Appears in 1 contract

Samples: Credit Agreement (Reynolds American Inc)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified~~ Equity Interests) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ Equity Interests or the ~~Stock or Stock Equivalents~~ Equity Interests of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Equity Interests), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise ~~acquire~~ acquire, directly or indirectly, for consideration (other than in connection with an Investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the Equity Interests of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of such Equity Interests) (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, and so long as it is permitted by applicable law: (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock~~ Equity Interests (or ~~Stock Equivalents~~ pay dividends with such proceeds) for another class of Equity Interests or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of its Equity Interests, provided that such ~~new Stock or Stock Equivalents contain~~ other class of Equity Interests contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ Equity Interests redeemed thereby; (b) the Borrower may (pay Dividends to Holdings or ~~may pay dividends~~ Parent to ~~permit any direct or indirect parent thereof to)~~ repurchase shares of its or Holdings’ or Parent’s Equity Interests (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its or Parent’s Equity Interests) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers and employees of Parent, ~~director or employee (or their respective Affiliates~~Holdings and its Subsidiaries, ~~estates or immediate family members)~~ with the proceeds of dividends from, seriatim, the Borrower and ~~its Subsidiaries or any parent thereof~~Holdings, as applicable, which shall also be permitted, so long as such repurchase is pursuant to, and in accordance with the terms of, management ~~and/or~~ or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower and the Restricted Subsidiaries may ~~pay dividends on its Stock or Stock Equivalents~~make Investments permitted by Section 10.5, sales of assets permitted by Section 10.4 and fundamental changes permitted by Section 10.3; provided that the amount of ~~all~~ any such ~~dividends paid from~~ Investment or sale of assets shall reduce the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent amount of the ~~Borrower pursuant to~~ applicable basket (if any) set forth in Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 10.4 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)10.5; (d) so long as no Specified Default has occurred and is continuing, the Borrower and its Restricted Subsidiaries may make distributions in respect of management, monitoring, consulting and advisory fees and related expenses owed to KKR and Xxxx to the extent permitted pursuant to Section 9.9; (e) the Borrower may declare and pay ~~dividends: (i)~~ dividends or make distributions on its Equity Interests, as applicable, the proceeds of which will be used ~~to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated~~by Parent, ~~combined, unitary~~ Holdings or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent ~~of the Borrower~~ solely to pay (Ai) ~~its operating expenses incurred in the ordinary course of business and~~ (x) franchise taxes (other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (Bthan income taxes) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain ~~the~~ their corporate existence or arising as a result of their ownership of Holdings or the Borrower, respectively and (y) federal, state and local income taxes, to the extent such income taxes are attributable to the income of the Borrower and the Restricted Subsidiaries and, to the extent of the amount actually received from the Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; provided that in each case the amount of such payments in any ~~direct or indirect~~ fiscal year does not exceed the amount that the Borrower, the Restricted Subsidiaries and the Unrestricted Subsidiaries (to the extent described above) would be required to pay in respect of federal, state and local taxes for such fiscal year were the Borrower, the Restricted Subsidiaries and the Unrestricted Subsidiaries (to the extent described above) to pay such taxes separately from any such parent entity and (ii) ordinary course operating and corporate overhead expenses and administrative and similar expenses related to its existence and ownership of the Borrower, as applicable; and (ivf) ~~to any direct or indirect parent of~~ the Borrower ~~to finance any Investment permitted to be made by~~ and the ~~Borrower or a~~ Restricted ~~Subsidiary pursuant to Section 10.5~~Subsidiaries may pay other Dividends; provided that (A) both immediately before and immediately after giving effect to such ~~dividend~~ Dividends, no Event of Default shall have occurred and be ~~made substantially concurrently with the closing of such Investment,~~ continuing and (B) ~~such parent shall~~at the time any Dividends are paid, ~~immediately following the closing thereof, cause~~ on a Pro Forma Basis (~~1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2~~x) the ~~merger (~~Fixed Charge Coverage Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered shall not be less than 1.25 to ~~the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries~~ 1.00 and (Cy) Average Daily Availability for the ~~Borrower shall comply with Sections 9.11~~ period of sixty (60) consecutive days (or, if less, the number of days from and ~~9.12~~ including the Closing Date to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after including the date of ~~declaration thereof, if at the date of declaration~~ determination) immediately preceding such ~~payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering~~ Dividend has been not less than 25% of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsLine Cap.

Appears in 1 contract

Samples: Credit Agreement (Accellent Inc)

Limitation on Dividends. The Borrower will not declare or pay any dividends ~~(other than dividends payable solely in its Qualified Equity Interests)~~ or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders ~~as such~~on account of such Stock and Stock Equivalents, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):or (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents~~Equivalents (other than any Cure Amount, ~~provided that~~ any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section Section 10.05(f)(ii) or Section Section 10.06(b)(i)); provided, that, (i) such new Stock or Stock Equivalents contain terms and provisions (taken as a whole) at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby;~~ thereby and (ii) the cash proceeds from any such contribution or issuance shall not increase the Applicable Equity Amount; (b) subject to the last paragraph of this Section 10.06, the Borrower may (or may ~~pay~~ paymake dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription ~~agreements or shareholder agreements or any other management or employee benefit~~ plan or agreement; , employment termination agreement or any employment agreements or stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 10.06(b), when combined with Investments made pursuant to Section 10.05(k), do not exceed in any calendar year $25,000,000the greater of (cx) ~~provided that~~$105,000,000 and (y) 10% of Consolidated Adjusted EBITDA for the most recently ended Test Period (which shall increase to $50,000,000the greater of (x) $210,000,000 and (y) 20% of Consolidated Adjusted EBITDA for the most recently ended Test Period subsequent to the consummation of an initial public offering of, ~~so long as~~ or registration of, Stock by the Borrower (or any direct or indirect parent company of the Borrower) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $60,000,000 in any calendar yearthe greater of (x) $210,000,000 and (y) 20% of Consolidated Adjusted EBITDA for the most recently ended Test Period (which shall increase to $100,000,000the greater of (x) $420,000,000 and (y) 40% of Consolidated Adjusted EBITDA for the most recently ended Test Period subsequent to the consummation of an underwritten public offering of, or registration of, Stock by the Borrower or any direct or indirect parent corporationcompany of the Borrower)); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) (lx) the cash proceeds from the sale of Stock (other than ~~with respect~~ Disqualified Stock, any Cure Amount, any sale or issuance to ~~clause~~ any Subsidiary and any contribution or issuance applied pursuant to Section Section 10.05(f)(ii) or Section 10.06(a)) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (~~c)(z~~or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) ~~below~~of the Borrower (or any of its direct or indirect parent companies) ~~no Default~~ or ~~Event~~ any Subsidiary of ~~Default exists~~ the Borrower that occurs after the Closing Date; provided, that, such Stock or ~~would exist~~ proceeds of such Stock will not increase the Applicable Equity Amount; plus (ii) (lxi) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (a) the Consolidated Total Net Leverage Ratio shall not be greater than (i) at any time prior to the Q2 2024 Financials Date, 2.75:1.00 or (ii) at any time on or after the Q2 2024 Financials Date, 3.23.75:1.00, calculated on a Pro Forma Basis after giving effect ~~thereto~~to such dividends) or (b) the Fixed Charge Coverage Ratio at such time shall not be less than 2.00:1.00, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) ~~all~~ no Event of Default under Section 11.01 or Section 11.05 shall have occurred and be continuing or would result therefrom; (d) the Borrower may make dividends, distributions or loans ~~and advances made~~ to any direct or indirect parent company of the Borrower ~~pursuant~~ in amount required for any such direct or indirect parent to ~~Section 10.5(m~~pay, in each case without duplication: (i) (lxiii) foreign, federal, state and local income Taxes(A) for any taxable period ending after the Closing Date in ~~lieu~~ which the Borrower is treated as (or is disregarded as an entity separate from) a partnership for U.S. federal and/or applicable state, local or foreign income tax purposes, any such U.S. federal and/or applicable state, local or foreign income Taxes, as applicable, to the extent such income Taxes are attributable to the taxable income of ~~dividends permitted by~~ the Borrower (including, as appropriate and without duplication, the taxable income of any of its Subsidiaries that are pass-through entities for purposes of the applicable Tax); provided, that, for purposes of this clause (cA) of this Section Section 10.06(d)(i), with respect to each such taxable period, the aggregate amount of such payments shall not exceed an the amount equal to the product of (~~x)(a~~x) ifthe taxable income of the Borrower (including, ~~on a Pro Forma Basis~~as appropriate and without duplication, the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0~~income of any of its Subsidiaries that are pass-through entities for purposes of the applicable Tax) for such taxable period, ~~$200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus~~ and (y) ifthe highest combined marginal U.S. federal, ~~on a Pro Forma Basis~~state and local income tax rate applicable to any individual resident in New York City, New York, U.S.A., taking into account the character of such income (long-term capital gain, qualified dividend income, tax exempt income, etc.) and including any net investment tax under Section 1411 of the Code and disregarding Section 199A of the Code; or (B) for any taxable period ending after the Closing Date in which, for U.S. federal and/or applicable state, local or foreign income tax purposes, the ~~Consolidated Total Debt to Consolidated EBITDA Ratio~~ Borrower and/or any of its Subsidiaries is ~~less than 7.0 to 1.0,~~ a member (including by virtue of being an entity disregarded as separate for purposes of the ~~Applicable Amount plus (z~~applicable Tax from a regarded member) ~~the Applicable Equity Amount at such time; for the avoidance~~ of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of a consolidated, combined, affiliated, unitary or ~~affiliated~~ similar income or similar tax ~~returns filed by~~ group of which a ~~direct~~ Parent Entity is the common parent (a “Tax Group”) or ~~indirect parent~~ the Borrower is disregarded as an entity separate from a Parent Entity that is treated as a C corporation, any such U.S. federal and/or applicable state, local or foreign income Taxes of such Tax Group or Parent Entity, as applicable, to the extent such income Taxes are attributable to the taxable income of the Borrower ~~in an amount not to exceed the income tax liability~~ and/or any of ~~the Borrower and the Restricted Subsidiaries were they to file~~ its applicable Subsidiaries, as ~~a stand-alone group~~applicable; provided, ~~reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds~~ that, for purposes of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus this clause (B) ~~any reasonable and customary indemnification claims made by directors or officers~~ of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or this Section Section 10.06(d)(i), such ~~Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which~~ Taxes shall be ~~used~~ deemed to ~~pay franchise and excise taxes and other fees~~equalwith respect to each such taxable period, ~~taxes and expenses required to maintain~~ the ~~corporate existence of any direct or indirect parent of the Borrower; and~~aggregate (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the ~~merger~~ merger, amalgamation or consolidation (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any Restricted Subsidiary, (C) the Borrower or such Restricted Subsidiary shall comply with Section 9.11 and Section 9.12 to the extent applicable, (D) the aggregate amount of such dividends shall reduce the ability of the Borrower and the Restricted Subsidiary to make Investments under the applicable clauses of Section 10.05 by such amount and (E) any property received in connection with such transaction shall not increase the Applicable Equity Amount; (v) (lxvii) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition or disposition transaction payable by the Borrower or the Restricted Subsidiaries; (vi) (lxviii) customary salary, bonus, severance and other benefits payable to officers, employees or consultants of any direct or indirect parent company (and such parent’s Subsidiaries) of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower, its Restricted Subsidiaries and (Cto the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries; 195 (vii) (lxix) [reserved]; (viii) (lxx) to the extent constituting dividends, amounts that would be permitted to be paid directly by the Borrower or its Restricted Subsidiaries under Section 9.9(a);pursuant to any transactions on terms that are, taken as a whole, not materially less favorable to the Borrower or such Restricted Subsidiary as it would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate (as determined in good faith by the Borrower); (ix) (lxxi) AHYDO Catch-Up Payments with respect to Indebtedness of any direct or indirect parent of the Borrower; provided, that, the proceeds of such Indebtedness have been contributed to the Borrower as a capital contribution; and (x) (lxxii) expenses incurred by any direct or indirect parent of the Borrower in connection with any public offering or other sale of Stock or Stock Equivalents or Indebtedness (i) where the net proceeds of such offering or sale are intended to be received by or contributed to the Borrower or a Restricted Subsidiary, (ii) in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or (iii) otherwise on an interim basis prior to completion of such offering so long as any direct or indirect parent of the Borrower shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed; (e) the Borrower ~~shall comply~~ may pay dividends or make distributions in connection with ~~Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved];~~ a Permitted Spin-Out Transaction; (f) dividends consisting of or resulting from Liens, fundamental changes, Dispositions, Investments or other payments or transactions permitted by 10.02, 10.03 (other than Section Section 10.03(j)), 10.04 (other than Section Section 10.04(d)), 10.05 (other than Section 10.05(l)), 10.07 or 10.08, as applicable; (g) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Stock or Stock Equivalents represents a portion of the ~~Restricted Subsidiaries~~ exercise price of such options or warrants, and the Borrower may pay dividends to any direct or indirect parent thereof as and when necessary to enable such parent to effect such repurchases; (h) the Borrower may (i) pay cash in lieu of fractional shares in connection with any dividend, ~~split~~ distribution, split, reverse share split, merger, consolidation, amalgamation or other combination thereof or any Permitted ~~Acquisition~~ Acquisition, and any dividend to the Borrower’s direct or indirect parent in order to effect the same and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; ; (gi) the Borrower may pay any dividend or distribution within 60 90 days after the date of declaration thereof or giving irrevocable notice thereof, if at the date of declaration or notice such payment would have complied with the provisions of this Agreement; ; (hj) subject to the last paragraph of this Section 10.06, following the one year anniversary of the Closing Date, so long as no Event of Default shall have occurred and is continuing or would result therefrom, the Borrower may declare and pay dividends and may redeem or repurchase on the Borrower’s ~~common stock~~ (or any direct or indirect parent’s thereof) Stock and Stock Equivalents following the registration or first public offering of the Borrower’s ~~common stock~~ Stock or Stock Equivalents or the ~~common stock~~ Stock or Stock Equivalents of any of its direct or indirect parents ~~after~~ or the ~~Original Closing Date,~~ commencement of ~~up to 6% per annum~~ trading of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant Borrower’s (or ~~their respective Affiliates, estates~~ any direct or ~~immediate family members~~indirect parent of the Borrower) ~~and any repurchases of~~ Stock ~~or Stock Equivalents in consideration of such payments including deemed repurchases in connection with~~ on the ~~exercise of stock options.~~OTCQX BestThe Nasdaq Global Select Market

Appears in 1 contract

Samples: Credit Agreement (Talen Energy Corp)

Appears in 1 contract

Samples: Credit Agreement (PanAmSat Holding CORP)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred, is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay ~~dividends on~~ Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock ~~Equivalents~~(or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of any Parent Entity of the Borrower, the Borrower and the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided ~~that~~ that, except with respect to non‑discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such ~~dividends paid~~ shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or the Borrower during such calendar year from the ~~Original Closing Date~~ sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key‑man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this ~~clause (c~~Section 10.6(b) (~~other than dividends paid pursuant~~ any amount so carried forward shall be deemed to ~~clause (c)(x) below prior to March 31, 2015~~be used last in the subsequent fiscal year)~~, when aggregated with~~ ; (i) ~~all aggregate principal amounts paid pursuant~~ to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may make Investments permitted by Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 10.5 and (ii) ~~all loans and advances made~~ each Restricted Subsidiary may make Dividends to ~~any direct or indirect parent of~~ the Borrower ~~pursuant~~ and to ~~Section 10.5(m)~~ Restricted Subsidiaries (and, in ~~lieu~~ the case of ~~dividends permitted~~ a Dividend by ~~this clause (c) shall not exceed an amount equal~~ a non-wholly owned Restricted Subsidiary, to ~~(x)(a) if,~~ the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(ctheir relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed~~ Borrower and its Restricted Subsidiaries; (vii) the proceeds of which shall be distributed in connection with the Transactions (including the Special Dividend, all or ~~acquired into~~ a portion of which may be paid after the Closing Date but in no event later than June 15, 2012); (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) on or ~~any~~ after the Amendment No. 13 Effective Date measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of ~~its Restricted Subsidiaries~~ (i) so long as no Event of Default has occurred and is continuing or would result therefrom, the greater of (x) $400,000,000 and (Cy) 6.75% of Consolidated Total Assets (measured as of the datean amount equal to the Remaining Available Amount at the time such Dividend is paid based upon the Section 9.1 Financials most recently delivered on or prior to such date), plus (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid, plus (iii) an amount equal to the Available Equity Amount at the time such Dividend is paid, plus (iv) an amount equal to the Incremental Dividend Amount plus (v) an amount equal to the Specified Dividend Amount; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.0:1.0; (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or immediate family members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 1 contract

Samples: Third Amendment, Extension and Incremental Assumption Agreement (LPL Financial Holdings Inc.)

Limitation on Dividends. ~~The Borrower~~ MRC will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of ~~the~~ its Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~10.2.5) any Stock or Stock Equivalents of ~~the Borrower~~MRC, now or hereafter outstanding (all of the ~~foregoing,~~ foregoing “dividends”):), provided that, (x) to the extent that a dividend, distribution or any other return of capital pursuant to clause (c) below is funded with a Borrowing hereunder, Excess Availability is not less than $100,000,000 after giving effect to such dividend, distribution or other return of capital and (y) so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) ~~the Borrower~~ MRC may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) ~~the Borrower~~ MRC may (or may ~~pay~~ make dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of ~~the Borrower~~ MRC and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements~~ agreements; provided, that the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all amounts obtained by MRC during such calendar year from the sale of such Stock or Stock Equivalents to other officers, directors and employees of MRC and its Subsidiaries in connection with any permitted compensation and incentive arrangements plus (iii) all amounts obtained from any key-man life insurance policies received during such calendar year; provided further that the aggregate amount permitted by the foregoing proviso with respect to any calendar year commencing with 2012 shall be increased by 100% of the amount of unused share repurchases for the immediately preceding year (such amount, a “carry-over amount”) without giving effect to any carryover amount that was added in such preceding calendar year and assuming any such carry-over amount is utilized first and so long as the aggregate amount of cash paid in respect of all such shares so repurchased in any calendar year does not exceed $20,000,000; and provided still further the aggregate amount of all cash paid in respect of all such shares so repurchased in any calendar year may exceed the aggregate amount permitted by the foregoing provisos if Excess Availability is not less than $100,000,000 after giving effect to such dividend, distribution or other ~~management or employee benefit plan or agreement~~return of capital; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower~~ MRC may pay dividends on its Stock or Stock Equivalents, provided that ~~the amount of all~~ after giving effect to such ~~dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31~~payment, ~~2015), when aggregated with~~ either (i) ~~all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i~~both (A) ~~from~~ Excess Availability is greater than the ~~2014 July Repricing Effective Date~~ higher of (1) 15% of the Commitments and (ii2) ~~all loans~~ $125,000,000 and ~~advances made to any direct or indirect parent of~~ (B) the ~~Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a~~ Pro Forma ~~Basis, the~~ Consolidated ~~Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA~~ Fixed Charge Coverage Ratio is greater than ~~7.0~~ 1.0 to ~~1.0~~1.0 or (ii) Excess Availability is greater than the higher of (A) 20% of the Commitments and (B) $175,000,000, ~~$0 plus (y) if, on a Pro Forma Basis,~~ and provided further that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) foregoing test shall not ~~retroactively cause~~ apply to any ~~breach of this Section 10.6(c) in respect of~~ dividends ~~previously~~ paid ~~in compliance~~ with ~~this Section 10.6(c);~~proceeds arising from a Qualified IPO; and (d) ~~the Borrower~~ MRC may pay dividends: (i) to its direct or indirect parent in amounts sufficient for any such parent to pay its income tax obligations for so long as MRC or any Restricted Subsidiary is a member of a group filing a consolidated, combined, unitary, affiliated or other similar tax return with such parent; provided the ~~proceeds~~ amount of ~~which~~ dividends paid under this clause (i) in respect of income tax obligations is limited to the extent such tax liability is directly attributable to the taxable income of MRC or its Subsidiaries (that are included in such consolidated, combined, unitary, affiliated or other similar tax return), determined as if MRC and such Subsidiaries filed a separate consolidated, combined, unitary, affiliated or other similar tax return as a stand-alone group and will be used to pay ~~income~~ (or to make dividends to allow any direct or indirect parent to pay), within 30 days of the receipt thereof, the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of such consolidated, combined, ~~unitary~~ unitary, affiliated or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiariesother similar returns; (ii) the proceeds of which shall be used to allow any direct or indirect parent of ~~the Borrower~~ MRC to pay (A) its operating expenses incurred in the ~~ordinary course~~ Ordinary Course of ~~business~~ Business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ~~ordinary course~~ Ordinary Course of ~~business and attributable to the ownership or operations of the Borrower~~Business, in an aggregate amount not to exceed $~~3,500,000~~ 2,000,000 in any fiscal year of MRC plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of ~~the Borrower~~ MRC (or any parent thereof) attributable to the ownership or operations of ~~the Borrower~~ MRC and its ~~Restricted~~ Subsidiaries or (CB) fees and expenses otherwise (1) due and payable by ~~the Borrower~~ MRC or any of its ~~Restricted~~ Subsidiaries and (2) permitted to be paid by ~~the Borrower~~ MRC or such ~~Restricted~~ Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) without duplication of clause (i), above, the proceeds of which shall be used to pay franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of MRC or its Restricted Subsidiaries, within thirty (30) days of the ~~Borrower; and~~receipt thereof; (iv) to any direct or indirect parent of ~~the Borrower~~ MRC to finance any Investment permitted to be made ~~by the Borrower or a Restricted Subsidiary~~ pursuant to Section ~~10.5~~10.2.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such ~~Investment,~~ Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to ~~the Borrower~~ MRC or ~~such~~ its Restricted ~~Subsidiary~~ Subsidiaries or (2) the merger (to the extent permitted in Section ~~10.5~~10.2.5) of the Person formed or acquired into ~~the Borrower~~ MRC or ~~any of~~ its Restricted Subsidiaries ~~and (C) the Borrower shall comply with Sections 9.11 and 9.12~~ in order to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any consummate such Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsAcquisition.

Appears in 1 contract

Samples: Loan, Security and Guarantee Agreement (South Texas Supply Company, Inc.)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred, is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay ~~dividends on~~ Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock ~~Equivalents~~(or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of any Parent Entity of the Borrower, the Borrower and the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided ~~that~~ that, except with respect to non‑discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such ~~dividends paid~~ shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or the Borrower during such calendar year from the ~~Original Closing Date~~ sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key‑man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this ~~clause (c~~Section 10.6(b) (~~other than dividends paid pursuant~~ any amount so carried forward shall be deemed to ~~clause (c)(x) below prior to March 31, 2015~~be used last in the subsequent fiscal year)~~, when aggregated with~~ ; (i) ~~all aggregate principal amounts paid pursuant~~ to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may make Investments permitted by Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 10.5 and (ii) ~~all loans and advances made~~ each Restricted Subsidiary may make Dividends to ~~any direct or indirect parent of~~ the Borrower ~~pursuant~~ and to ~~Section 10.5(m)~~ Restricted Subsidiaries (and, in ~~lieu~~ the case of ~~dividends permitted~~ a Dividend by ~~this clause (c) shall not exceed an amount equal~~ a non-wholly owned Restricted Subsidiary, to ~~(x)(a) if,~~ the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(ctheir relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed~~ Borrower and its Restricted Subsidiaries; (vii) the proceeds of which shall be distributed in connection with the Transactions (including the Special Dividend, all or ~~acquired into~~ a portion of which may be paid after the Closing Date but in no event later than June 15, 2012); (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) on or ~~any~~ after the Amendment No. 1 Effective Date measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of ~~its Restricted Subsidiaries~~ (i) so long as no Event of Default has occurred and is continuing or would result therefrom, the greater of (x) $250,000,000 and (Cy) 6.75% of Consolidated Total Assets (measured as of the date such Dividend is paid based upon the Section 9.1 Financials most recently delivered on or prior to such date), plus (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid plus (iii) an amount equal to the Available Equity Amount at the time such Dividend is paid plus (iv) an amount equal to the Incremental Dividend Amount; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.0:1.0; (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or immediate family members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 1 contract

Samples: Incremental Tranche B Term Loans (LPL Financial Holdings Inc.)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (ai) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or~~ with proceeds received by the Borrower from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby;~~ (other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default ~~exists~~ has occurred, is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay ~~dividends~~ Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or repurchase) shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of any Parent Entity of the Borrower, the Borrower and the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided that the aggregate amount of all cash paid in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $5,000,000 plus (ii) all Net Cash Proceeds obtained by the Borrower during such calendar year from the sale of such Capital Stock to other present or former officers, consultants, employees and directors in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i)) (before giving effect to any carry forward) may be carried forward without duplication to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b)) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); (i) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may make Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Dividends to the Borrower and to Restricted Subsidiaries (and, in the case of a Dividend by a non-wholly- owned (disregarding general partner, managing member and other similar interests) Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on ~~its~~ their relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock ~~Equivalents~~represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases if the net cash consideration received by such Parent Entity in respect of such exercise price is promptly contributed to the Borrower; (f) the Borrower or any Restricted Subsidiary may make and pay Dividends: (i) (a) within any taxable year, equal to (I) the estimated taxable income of the Borrower allocable to such period (determined without regard to any basis adjustments under Section 734 of the Code or under Section 743 of the Code), less cumulative net taxable losses from prior taxable years (but excluding any such losses that were allocated to Persons that have ceased to be direct or indirect owners of the Borrower) to the extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken into account in determining Tax Distributions, multiplied by (II) the highest combined marginal federal, state and local income tax rate (including taxes imposed under Sections 1401 and 1411 of the Code) applicable to any direct or indirect owner of the Borrower during such period (the “Assumed Tax Rate”), and (b) after the end of any taxable year, equal to (I) the taxable income of the Borrower for such taxable year (determined without regard to any basis adjustments under Section 734 of the Code or under Section 743 of the Code), less cumulative net taxable losses from prior taxable years (but excluding any such losses that were allocated to Persons that have ceased to be direct or indirect owners of the Borrower) to the extent that such losses are of a character (ordinary or capital) that would permit such losses to be deducted by the direct or indirect owners of the Borrower against the current taxable income of the Borrower allocable to such owners and have not previously been taken into account in determining Tax Distributions, multiplied by the Assumed Tax Rate, minus (II) any Dividends previously made under clause (a) with respect to such taxable year; provided that the amount of all ~~such dividends paid from the Original Closing Date pursuant to this~~ Dividends under clause (ca) for a taxable year in excess of the annual tax liability determined under clause (b)(I) for such taxable year shall reduce dollar-for-dollar subsequent Dividends under clause (a) (~~other than dividends paid pursuant to clause~~ in the case of clauses (~~c)(x~~a) ~~below prior to March 31, 2015~~and (b), ~~when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct~~ which shall be payable regardless of whether a Default, Event of Default or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in non-compliance with Section ~~10.7(a)(y)(i~~10.9 shall exist) ~~shall not retroactively cause any breach of this Section 10.6(c~~(such distributions in clauses (a) ~~in respect of dividends previously paid in compliance with this Section 10.6(c~~and (b)~~; (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated~~, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; “Tax Distributions”); (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third partiespay), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 1 contract

Samples: Credit Agreement (GCM Grosvenor Inc.)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and LPL – Conformed A&R Credit Agreement provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) so long as no Default or Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or ~~may pay dividends to permit any direct or indirect parent thereof to~~repurchase) ~~repurchase~~ shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~parent’s~~Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or ~~Stock Equivalents~~ any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by any present or former ~~officer~~employees, ~~director~~ directors, officers, managers, members of management, independent contractors or ~~employee~~ consultants (or their respective ~~Affiliates, estates~~ Immediate Family Members or ~~immediate family members~~permitted transferees) of any Parent Entity of the Borrower, the Borrower and ~~its Subsidiaries~~ the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any ~~parent thereof, so long as~~ such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any stock option or stock appreciation or similar rights plan, ~~management~~ any management, director and/or employee stock ~~plans~~ownership or incentive plan, stock subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee ~~benefit plan~~ stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or the Borrower during such calendar year from the sale of such Capital Stock to any present or former employees, directors, officers, managers, members of management, independent contractors or consultants (or their respective Immediate Family Members or permitted transferees) in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); (ci) ~~provided that~~to the extent constituting Dividends, ~~so long as~~ the Borrower and any Restricted Subsidiary may make Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Dividends to the Borrower and to Restricted Subsidiaries (and, in the case of a Dividend by a non-wholly owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other ~~than with respect~~ owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests); LPL – Conformed A&R Credit Agreement (d) to ~~clause (c)(z) below) no Default or Event~~ the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of ~~Default exists or would exist after giving effect thereto,~~ Section 10.3 and the Borrower may pay ~~dividends on its Stock or Stock Equivalents, provided that~~ Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends transactions permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)section; (de) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed or acquired into~~ Borrower and its Restricted Subsidiaries; LPL – Conformed A&R Credit Agreement (vii) the proceeds of which shall be distributed in connection with the Transactions; (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) so long as no Event of Default has occurred and is continuing or ~~any~~ would result therefrom, an amount equal to the Remaining Dividends Amount at the time such Dividend is paid, plus (ii) so long as no Event of ~~its Restricted Subsidiaries~~ Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid, plus (Ciii) an amount equal to the Available Equity Amount at the time such Dividend is paid, plus (iv) an amount equal to the Specified Dividend Amount; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.0:1.0; (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or ~~immediate family members~~Immediate Family Members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings; LPL – Conformed A&R Credit Agreement

Appears in 1 contract

Samples: Second Amendment (LPL Financial Holdings Inc.)

Appears in 1 contract

Samples: Term Loan Credit Agreement (McJunkin Red Man Holding Corp)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) so long as no Default or Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or ~~may pay dividends to permit any direct or indirect parent thereof to~~repurchase) ~~repurchase~~ shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~parent’s~~Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or ~~Stock Equivalents~~ any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by any present or former ~~officer~~employees, ~~director~~ directors, officers, managers, members of management, independent contractors or ~~employee~~ consultants (or their respective ~~Affiliates, estates~~ Immediate Family Members or ~~immediate family members~~permitted transferees) of any Parent Entity of the Borrower, the Borrower and ~~its Subsidiaries~~ the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any ~~parent thereof, so long as~~ such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any stock option or stock appreciation or similar rights plan, ~~management~~ any management, director and/or employee stock ~~plans~~ownership or incentive plan, stock subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee ~~benefit plan~~ stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds 183 obtained by Holdings or the Borrower during such calendar year from the sale of such Capital Stock to any present or former employees, directors, officers, managers, members of management, independent contractors or consultants (or their respective Immediate Family Members or permitted transferees) in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); (ci) ~~provided that, so long as (other than with respect~~ to ~~clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto~~the extent constituting Dividends, the Borrower and any Restricted Subsidiary may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to make Investments permitted by Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 10.5 and (ii) ~~all loans and advances made~~ each Restricted Subsidiary may make Dividends to ~~any direct or indirect parent of~~ the Borrower ~~pursuant~~ and to ~~Section 10.5(m)~~ Restricted Subsidiaries (and, in ~~lieu~~ the case of ~~dividends permitted~~ a Dividend by ~~this clause (c) shall not exceed an amount equal~~ a non-wholly owned Restricted Subsidiary, to ~~(x)(a) if,~~ the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(ctheir relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries;; 184 (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed or acquired into~~ Borrower and its Restricted Subsidiaries; (vii) the proceeds of which shall be distributed in connection with the Transactions; (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) after the Fourth Amendment Effective Date measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) so long as no Event of Default has occurred and is continuing or ~~any~~ would result therefrom, an amount equal to the Remaining Dividends Amount at the time such Dividend is paid, plus (ii) so long as no Event of ~~its Restricted Subsidiaries~~ Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid, plus (Ciii) an amount equal to the Available Equity Amount at the time such Dividend is paid, plus (iv) an amount equal to the Specified Dividend Amount; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable;~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.75:1.00; 185 (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or ~~immediate family members~~Immediate Family Members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 1 contract

Samples: Seventh Amendment (LPL Financial Holdings Inc.)

Limitation on Dividends. (a) The Borrower will not declare or pay any ~~dividends~~ distributions (other than ~~dividends~~ distributions payable solely in its ~~Qualified Equity Interests~~Capital Stock) or return any capital to its ~~stockholders (including any option holders)~~ shareholders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ shareholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any ~~shares of any class~~ of its Capital Stock ~~or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such Capital Stock), or set aside any funds for any of the foregoing purposes, or permit any of the other Restricted ~~Subsidiaries~~ Entities to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment permitted~~ investment not prohibited by Section ~~10.5~~9.5) any Capital Stock ~~or Stock Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its Capital Stock) (all of the foregoing, “~~dividends~~Dividends”): ), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (ai) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any Capital Stock of ~~its Stock or Stock Equivalents~~ the Borrower (A) for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire Capital Stock ~~Equivalents~~ of the Borrower or (B) with proceeds from substantially concurrent ~~equity~~ capital contributions or issuances of new ~~Stock or Stock Equivalents~~classes of Capital Stock, provided that such ~~new~~ other class of Capital Stock ~~or Stock Equivalents contain~~ contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Capital Stock ~~or Stock Equivalents~~ redeemed thereby; , (bii) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase ~~shares of~~ its ~~(or such parent’s)~~ Capital Stock ~~or Stock Equivalents~~ held by ~~any present or former officer~~its officers, ~~director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower~~ directors and ~~its Subsidiaries or any parent thereof,~~ employees so long as such repurchase is pursuant to, and in accordance with the terms of, employment agreements, management and/or employee ~~stock plans, stock subscription agreements~~ option plans or shareholder or partnership agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the ~~Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause~~ Borrower, (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (diii) the Borrower may ~~pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower~~ make investments not prohibited by Section 9.5 and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the ~~Borrower’s common stock following the first public offering~~ preferred shares of the ~~Borrower’s common stock~~ Borrower existing as at the date hereof, (v) the Borrower may, on or prior to October 17, 2011, pay the dividends on the common shares of the Borrower that were declared on August 4, 2011. (b) The Borrower will not, at any time that a Default or Event of Default has occurred and is continuing, suffer or permit any of the other Restricted Entities to declare or pay any distributions (other then distributions payable solely in its Capital Stock) to any Person other than a Credit Party, or return any capital to any of its shareholders unless such shareholder is a Credit Party, or make any other distribution, payment or delivery of property or cash to any of its shareholders as such unless such shareholder is a Credit Party, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any of its Capital Stock now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of ~~its direct~~ such Capital Stock) unless such Capital Stock is owned by a Credit Party, or ~~indirect parents after the Original Closing Date, of up to 6% per annum~~ set aside any funds for any of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsforegoing purposes.

Appears in 1 contract

Samples: Credit Agreement

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and 180 LPL – Conformed A&R Credit Agreement provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) so long as no Default or Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or ~~may pay dividends to permit any direct or indirect parent thereof to~~repurchase) ~~repurchase~~ shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~parent’s~~Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or ~~Stock Equivalents~~ any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by any present or former ~~officer~~employees, ~~director~~ directors, officers, managers, members of management, independent contractors or ~~employee~~ consultants (or their respective ~~Affiliates, estates~~ Immediate Family Members or ~~immediate family members~~permitted transferees) of any Parent Entity of the Borrower, the Borrower and ~~its Subsidiaries~~ the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any ~~parent thereof, so long as~~ such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any stock option or stock appreciation or similar rights plan, ~~management~~ any management, director and/or employee stock ~~plans~~ownership or incentive plan, stock subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee ~~benefit plan~~ stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or the Borrower during such calendar year from the sale of such Capital Stock to any present or former employees, directors, officers, managers, members of management, independent contractors or consultants (or their respective Immediate Family Members or permitted transferees) in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); (ci) ~~provided that~~to the extent constituting Dividends, ~~so long as~~ the Borrower and any Restricted Subsidiary may make Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Dividends to the Borrower and to Restricted Subsidiaries (and, in the case of a Dividend by a non-wholly owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other ~~than with respect~~ owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests); 181 LPL – Conformed A&R Credit Agreement (d) to ~~clause (c)(z) below) no Default or Event~~ the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of ~~Default exists or would exist after giving effect thereto,~~ Section 10.3 and the Borrower may pay ~~dividends on its Stock or Stock Equivalents, provided that~~ Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends transactions permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)section; (de) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed or acquired into~~ Borrower and its Restricted Subsidiaries; 182 LPL – Conformed A&R Credit Agreement (vii) the proceeds of which shall be distributed in connection with the Transactions; (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) after the Fourth Amendment Effective Date measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) so long as no Event of Default has occurred and is continuing or ~~any~~ would result therefrom, an amount equal to the Remaining Dividends Amount at the time such Dividend is paid, plus (ii) so long as no Event of ~~its Restricted Subsidiaries~~ Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid, plus (Ciii) an amount equal to the Available Equity Amount at the time such Dividend is paid, plus (iv) an amount equal to the Specified Dividend Amount; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.75:1.00; (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or ~~immediate family members~~Immediate Family Members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not 183 LPL – Conformed A&R Credit Agreement exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 1 contract

Samples: Fourth Amendment (LPL Financial Holdings Inc.)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (a) (i) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock or redeemed thereby and (ii) the Borrower and any Restricted Subsidiary may pay Dividends payable solely in the Capital Stock ~~Equivalents redeemed thereby~~(other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; (b) so long as no Default or Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay Dividends to any Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or ~~may pay dividends to permit any direct or indirect parent thereof to~~repurchase) ~~repurchase~~ shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~parent’s~~Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or ~~Stock Equivalents~~ any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by any present or former ~~officer~~employees, ~~director~~ directors, officers, managers, members of management, independent contractors or ~~employee~~ consultants (or their respective ~~Affiliates, estates~~ Immediate Family Members or ~~immediate family members~~permitted transferees) of any Parent Entity of the Borrower, the Borrower and ~~its Subsidiaries~~ the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any ~~parent thereof, so long as~~ such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any stock option or stock appreciation or similar rights plan, ~~management~~ any management, director and/or employee stock ~~plans~~ownership or incentive plan, stock subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or equity holders’ agreement; provided that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee ~~benefit plan~~ stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or 172 LPL – A&R Credit Agreement equity holders’ agreement, the aggregate amount of all cash paid in respect of all such shares of Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or the Borrower during such calendar year from the sale of such Capital Stock to any present or former employees, directors, officers, managers, members of management, independent contractors or consultants (or their respective Immediate Family Members or permitted transferees) in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); (ci) ~~provided that, so long as (other than with respect~~ to ~~clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto~~the extent constituting Dividends, the Borrower and any Restricted Subsidiary may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to make Investments permitted by Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 10.5 and (ii) ~~all loans and advances made~~ each Restricted Subsidiary may make Dividends to ~~any direct or indirect parent of~~ the Borrower ~~pursuant~~ and to ~~Section 10.5(m)~~ Restricted Subsidiaries (and, in ~~lieu~~ the case of ~~dividends permitted~~ a Dividend by ~~this clause (c) shall not exceed an amount equal~~ a non-wholly owned Restricted Subsidiary, to ~~(x)(a) if,~~ the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(ctheir relative ownership interests); (d) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; (e) the Borrower may repurchase Capital Stock of any Parent Entity of the Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to the extent such Capital Stock represents all or a portion of the exercise price of such options or warrants, and the Borrower may pay Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; (f) [Reserved]; (g) the Borrower may make and pay Dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; (ii) the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, 173 LPL – A&R Credit Agreement legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; (iii) the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; (iv) the proceeds of which shall be used to pay (or to make Dividends to any ~~direct~~ Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); (v) the proceeds of which shall be used to pay (or ~~indirect parent~~ to make Dividends to allow any Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; (vi) the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed or acquired into~~ Borrower and its Restricted Subsidiaries; (vii) the proceeds of which shall be distributed in connection with the Transactions; (h) in addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) so long as no Event of Default has occurred and is continuing or ~~any~~ would result therefrom, an amount equal to the Remaining Dividends Amount at the time such Dividend is paid, plus (ii) so long as no Event of ~~its Restricted Subsidiaries~~ Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid, plus (Ciii) an amount equal to the Available Equity Amount at the time such Dividend is paid, plus (iv) an amount equal to the Specified Dividend Amount; (i) the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.0:1.0; (~~e) [Reserved]; (f~~j) the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;; 174 LPL – A&R Credit Agreement (gk) the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or ~~immediate family members~~Immediate Family Members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; (l) the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); (m) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and (n) so long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 1 contract

Samples: Fourth Amendment Agreement (LPL Financial Holdings Inc.)

Limitation on Dividends. The Borrower will not declare or pay any dividends ~~(other than dividends payable solely in its Qualified Equity Interests)~~ or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders ~~as such~~on account of such Stock and Stock Equivalents, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or ~~the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or~~ set aside any funds for any of the foregoing purposes, ~~or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration~~ (other than dividends payable solely in ~~connection with an Investment permitted by Section 10.5) any~~ its Stock or Stock Equivalents ~~of the Borrower, now or hereafter outstanding~~ (other than Disqualified Stock)) (all of the foregoing, “dividends”):), provided: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents~~Equivalents (other than any Cure Amount, any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(b)(i)); provided that (i) such new Stock or Stock Equivalents contain terms and provisions (taken as a whole) at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby~~thereby and (ii) the cash proceeds from any such contribution or issuance shall not increase the Applicable Equity Amount; (b) subject to the last paragraph of this Section 10.6, the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or ~~shareholder agreements~~ stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 10.6(b), when combined with Investments made pursuant to Section 10.5(k), do not exceed in any calendar year $25,000,000 (which shall increase to $50,000,000 subsequent to the consummation of an initial public offering of, or registration of, Stock by the Borrower (or any direct or indirect parent company of the Borrower)) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $60,000,000 in any calendar year (which shall increase to $100,000,000 subsequent to the consummation of an underwritten public offering of, or registration of, Stock by the Borrower or any direct or indirect parent corporation of the Borrower)); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds from the sale of Stock (other than Disqualified Stock, any Cure Amount, any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(a)) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct 222 AMERICAS 122173769123894352 or indirect parent companies) or any Subsidiary of the Borrower that occurs after the Closing Date; provided that such Stock or proceeds of such Stock will not increase the Applicable Equity Amount; plus (ii) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (iii) the amount of any dividends or distributions previously made with the cash proceeds described in clauses (i) and (ii) above; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies), or any Subsidiary of the Borrower in connection with a repurchase of Stock or Stock Equivalents of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that~~subject to the last paragraph of this Section 10.6, so long as ~~(other than with respect to clause (c)(z) below)~~ no ~~Default or~~ Event of Default ~~exists~~ under Section 11.1 or Section 11.5 shall have occurred and be continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (zx) the Applicable Equity Amount at the time such dividends are paid plus (y) the Applicable Amount at such time~~; for the avoidance of doubt~~, ~~amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c)~~ provided that in respect of any dividends ~~previously paid~~ made in ~~compliance with this Section 10.6(c)~~reliance of clause (ii) of the definition of Applicable Amount, (i) the Consolidated Total Net Leverage Ratio shall not be greater than 4.50 to 1.01.00 (calculated on a Pro Forma Basis after giving effect to such dividends) and (ii) no Event of Default shall have occurred and be continuing or would result therefrom; (d) the Borrower may ~~pay~~ make dividends, distributions or loans to any direct or indirect parent company of the Borrower in amount required for any such direct or indirect parent to pay, in each case without duplication: (i) foreign, federal, state and local income Taxes, to the ~~proceeds of which will be used to pay~~ extent such income ~~tax liability~~ Taxes are attributable to the income of the Borrower and its Subsidiaries; provided that for purposes of this Section 10.6(d)(i), such Taxes shall be deemed to equal the ~~Restricted~~ excess of (a) the amount that the Borrower and its Subsidiaries would be required to pay in respect of foreign, federal, state and local income Taxes if the Borrower were the parent of a standalone consolidated, combined, affiliated, unitary or ~~affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the~~ similar income tax ~~liability~~ group including its Subsidiaries; over (b) the amount of ~~the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any~~ such income ~~taxes~~ Taxes paid ~~directly~~ by the Borrower and/or any of its Subsidiaries to the applicable Governmental Authority on behalf of such parent or that otherwise reduce the income Tax liability of such parent (but solely to the extent of such reduction); provided, further, that the permitted payment pursuant to this clause (i) with respect to any taxes of any Unrestricted Subsidiary or Excluded Project Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary or Excluded Project Subsidiary to the Borrower or its Restricted ~~Subsidiaries~~Subsidiaries for the purposes of paying such taxes; (ii) ~~the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its~~ such parents’ and their respective Subsidiaries’ general operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties~~), which~~ ) to the extent such costs and expenses are ~~reasonable and customary and incurred in the ordinary course of business and~~ attributable to the ownership or ~~operations~~ operation of the ~~Borrower~~223 AMERICAS 122173769123894352 Borrower and its Restricted Subsidiaries and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any ~~reasonable and customary~~ indemnification claims made by directors or officers of the Borrower (or any parent thereof) to the extent such claims are attributable to the ownership or ~~operations~~ operation of the Borrower or any Restricted Subsidiary and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower (or any ~~of its~~ parent thereof and such parent’s Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary and ~~permitted~~ not prohibited to be paid by the Borrower ~~or such~~ and its Restricted ~~Subsidiary under this Agreement (including in respect of any initial public offering)~~Subsidiaries hereunder; (iii) ~~the proceeds of which shall be used to pay~~ franchise and excise ~~taxes~~ Taxes and other fees, ~~taxes~~ Taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower~~; and~~; (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a any Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the ~~merger~~ merger, amalgamation or consolidation (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any Restricted Subsidiary, (C) the Borrower or such Restricted Subsidiary shall comply with Section 9.11 and Section 9.12 to the extent applicable, (D) the aggregate amount of such dividends shall reduce the ability of the Borrower and the Restricted Subsidiary to make Investments under the applicable clauses of Section 10.5 by such amount and (E) any property received in connection with such transaction shall not increase the Applicable Equity Amount; (v) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition or disposition transaction payable by the Borrower or the Restricted Subsidiaries; (vi) customary salary, bonus, severance and other benefits payable to officers, employees or consultants of any direct or indirect parent company (and such parent’s Subsidiaries) of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower, its Restricted Subsidiaries and (~~C) the Borrower shall comply with Sections 9.11 and 9.12~~ to the extent ~~applicable~~of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries; (evii) [~~Reserved~~reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.

Appears in 1 contract

Samples: Credit Agreement (Vistra Corp.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing,~~ foregoing “dividends”); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto (except with respect to clause (e) below): (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part or pay dividends upon any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its capital stock; provided that (X) such ~~new Stock~~ contributions or ~~Stock Equivalents contain~~ issuances shall not increase the Applicable Amount and (Y) such other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; (b) the Borrower may repurchase shares of its capital stock (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) held by officers, directors and employees of the Borrower and its Subsidiaries and may ~~pay~~ make dividends the proceeds of which are to ~~permit~~ be used by any direct or indirect parent ~~thereof to)~~ of the Borrower to repurchase shares of ~~its (or~~ the capital stock of any such ~~parent’s) Stock or Stock Equivalents~~ parent held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries or of any ~~parent thereof~~such parent, in either case so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may declare and pay dividends on its ~~Stock or Stock Equivalents,~~ capital stock; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may declare and pay ~~dividends: (i) the proceeds of which will be used~~ dividends and/or make distributions to ~~pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect~~ any parent of the Borrower ~~in an amount not to exceed the income tax liability~~ or commonly controlled Affiliate of ~~the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by~~ any ~~such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect~~ parent of the Borrower to pay ~~(A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs~~ fees and expenses ~~(including administrative, legal, accounting~~ related to ownership and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations operation of the Borrower and its ~~Restricted~~ Subsidiaries or (C) including fees and expenses ~~otherwise due~~ (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 parent of the Borrower and general corporate overhead expenses of any parent of the Borrower); Table of Contents (e) the Borrower may declare and pay dividends and/or make distributions to Holdings (or any other entity that may be a parent of Holdings) for the purpose of paying fees to the Sponsors of the types contemplated in Sections 9.9(a) (provided that such fees contemplated in Section 9.9(a) are paid quarterly when due), (b) and (c); provided that no such dividend or distribution contemplated by this clause (e) may be paid to the extent that the Borrower has paid a like amount for a substantially similar service to the Sponsors directly, as contemplated in Section 9.9; (f) the Borrower may declare and pay dividends at the times and in the amounts required for any parent of the Borrower to pay regularly scheduled interest on Indebtedness the proceeds of which have been contributed to the Borrower or any of its Restricted Subsidiaries and ~~permitted to be paid by~~ that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower ~~or such Restricted Subsidiary under this Agreement (including~~ incurred in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to accordance with Section ~~10.5~~10.1; provided that ~~(A) such dividend shall be made substantially concurrently with~~ the ~~closing~~ amount of ~~such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents)~~ cash dividends paid pursuant to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; this clause (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with to enable any such ~~conversion~~ parent to make any such payments and ~~may~~ redemptions shall not exceed the amount necessary to make such payments ~~on convertible Indebtedness in accordance with its terms~~and redemptions at such time; (g) for any taxable year, the Borrower may declare and pay dividends or other distributions to any ~~dividend~~ parent of the Borrower if such parent is required to file a consolidated, unitary or ~~distribution within 60 days after~~ similar tax return reflecting income of the ~~date~~ Borrower or its Restricted Subsidiaries, in an amount equal to the portion of ~~declaration thereof~~such taxes attributable to the Borrower and/or its Restricted Subsidiaries that are not payable directly by the Borrower and/or its Restricted Subsidiaries, ~~if at~~ but not to exceed the ~~date of declaration~~ amount that the Borrower and/or such ~~payment~~ Restricted Subsidiaries would have ~~complied with~~ been required to pay in respect of such taxes if the ~~provisions of this Agreement~~Borrower and/or such Restricted Subsidiaries (as applicable) had been required to pay such taxes directly as standalone taxpayers (or a standalone group separate from such parent); (h) the Borrower may declare and pay dividends to any parent entity (which may dividend or on-loan such money to any of its parent entities) to the extent that amounts equal to such dividends are immediately contributed to the capital of, or paid as interest and/or principal on debt to, the Borrower or any Restricted Subsidiary; provided that such subsequent contribution shall not constitute contributions of Disqualified Preferred Stock, a CI Contribution, a Permitted Equity Issuance pursuant to Section 12.13 or a contribution for purposes of the definition of “Applicable Amount;” (i) the Borrower may declare and pay dividends (and may declare dividends to be made to repay Investments made pursuant to Section 10.5(y)) at the times and in the amounts necessary to enable any parent of the Borrower to (i) make regularly scheduled interest payments on the Existing Parent Indebtedness and (ii) repay, purchase, redeem, retire, defease or otherwise acquire for value the principal and premium, if any, of the Intelsat S.A. Notes; provided that the amount of cash dividends paid pursuant to this clause (i) to enable any such parent to make any such payments and redemptions shall not exceed the amount necessary to make such payments and redemptions at such time; (j) the Borrower may pay dividends the proceeds of which are used substantially simultaneously to pay interest or the principal amount of debt obligations owed to (x) any Credit Party and (y) to any Subsidiary that is not a Credit Party; provided that in the case of this clause (y) such dividends do not exceed $75,000,000 in the aggregate in any fiscal year; (k) the Borrower may declare and pay dividends or distributions to holders of any class or series of Disqualified Preferred Stock of the Borrower or any of its Restricted Subsidiaries issued or incurred in accordance with Section 10.1(B); provided that the aggregate amount of dividends declared and paid pursuant to this clause (k) does not exceed the Net Cash Proceeds actually received by the Borrower from any such sale of Disqualified Preferred Stock after the Closing Date; and (l) the Borrower may declare and pay dividends on the Borrower’s ordinary shares or common stock ~~following~~ (or the ~~first public offering~~ payment of dividends to any parent of the Borrower, as the case may be, to fund the Table of Contents payment by any parent of the Borrower of dividends on such entity’s ordinary shares or common ~~stock or the common stock of any of its direct or indirect parents after the Original Closing Date,~~ stock) of up to 67.5% per annum of the net proceeds received by the Borrower from any public offering of ordinary shares or common stock or contributed ~~as common equity~~ to the Borrower ~~in or~~ by any parent of the Borrower from any ~~such~~ public offering ~~to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6~~ of ordinary shares or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionscommon stock.

Appears in 1 contract

Samples: Amendment No. 5 and Joinder Agreement (Intelsat S.A.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Stock or Stock Equivalents (other than Disqualified Stock)) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any ~~of the~~ Restricted ~~Subsidiaries~~ Subsidiary to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the ~~Borrower,~~ Borrower now or hereafter outstanding (all of the foregoing, “dividends”):), provided, subject to the Cash Management Order, the Tax Order and the Wages Order: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that (i) such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby~~thereby and (ii) the cash proceeds from any such contribution or issuance have not otherwise been applied pursuant to the Applicable Equity Amount; (b) so long as no Payment Default or Event of Default shall have occurred and is continuing or would result therefrom, the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or ~~shareholder agreements~~ stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 10.6(b) do not exceed in any calendar year $25,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $50,000,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds from the sale of Stock (other than Disqualified Stock) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies) or any Subsidiary of the Borrower that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Stock have not otherwise been applied pursuant to the Applicable Equity Amount; plus (ii) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (iii) the amount of any dividends or distributions previously made with the cash proceeds described in clauses (i) and (ii) above; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies), or any Subsidiary of the Borrower in connection with a repurchase of Stock or Stock Equivalents of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no Payment Default or Event of Default ~~exists~~ shall have occurred and is continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c~~) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015~~), when aggregated with (i) all aggregate principal amounts paid pursuant to Section ~~10.7(a)(y)(i)~~ 10.7 from the ~~2014 July Repricing Effective~~ Closing Date and (ii) (A) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) and (B) all Investments made pursuant to Section 10.5(v), shall not exceed an amount equal to (~~x)(a~~x) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z)~~ the Applicable Equity Amount at the time such ~~time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of~~ dividends ~~previously paid in compliance with this Section 10.6(c)~~are paid; (d) the Borrower may ~~pay~~ make dividends, distributions or loans to any direct or indirect parent company of the Borrower in amount required for any such direct or indirect parent to pay, in each case without duplication: (i) foreign, federal, state and local income taxes, to the ~~proceeds of which will be used to pay~~ extent such income ~~tax liability~~ taxes are attributable to the ~~Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the~~ income ~~tax liability~~ of the Borrower and its Subsidiaries; provided that the ~~Restricted~~ amount of such payments in any fiscal year does not exceed the amount that the Ultimate Parent and its Subsidiaries ~~were they~~ are required to ~~file as a stand-alone group~~pay in respect of foreign, ~~reduced by any such~~ federal, state and local income taxes ~~paid directly by~~ attributable to the income of the Borrower ~~or the Restricted Subsidiaries~~and its Subsidiaries for such fiscal year; (ii) ~~the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its~~ such parents’ and their respective Subsidiaries’ (other than the Oncor Subsidiaries) general operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and to the extent such costs and expenses are attributable to the ownership or ~~operations~~ operation of the ~~Borrower~~Borrower and its Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent ~~thereof~~thereof and such parent’s Subsidiaries (other than the Oncor Subsidiaries) to the extent such claims are attributable to the ownership or ~~operations~~ operation of the Borrower and its Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary or (C) fees and expenses otherwise due and payable by the Borrower (or any parent thereof and such parent’s Subsidiaries (other than the Oncor Subsidiaries) to the extent such fees and expenses are attributable to the ownership or operation of the Borrower and its Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary and ~~permitted~~ not prohibited to be paid by the Borrower ~~or such~~ and its Restricted ~~Subsidiary under this Agreement (including in respect of any initial public offering)~~Subsidiaries hereunder; (iii) ~~the proceeds of which shall be used to pay~~ franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower~~; and~~; (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a any Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any ~~of its~~ Restricted ~~Subsidiaries and~~ Subsidiary, (C) the Borrower shall comply with ~~Sections~~ Section 9.11 and Section 9.12 to the extent ~~applicable~~applicable and (D) the aggregate amount of such dividends shall reduce the ability of the Borrower and the Restricted Subsidiary to make Investments under the applicable clauses of Section 10.5 by such amount; (v) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition or disposition transaction payable by the Borrower or the Restricted Subsidiaries; and (vi) customary salary, bonus and other benefits payable to officers, employees or consultants of any direct or indirect parent company (and such parent’s Subsidiaries (other than the Oncor Subsidiaries)) of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and its Subsidiaries; (e) ~~[Reserved]~~to the extent (if any) constituting dividends, transactions pursuant to the Shared Services Agreement or described in any Budget approved by the Administrative Agent and the Joint Lead Arrangers; (f) to the extent constituting dividends, the Borrower may enter into and consummate transactions expressly permitted by any provision of Section 10.3; (g) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Stock or Stock Equivalents represents a portion of the ~~Restricted Subsidiaries~~ exercise price of such options or warrants, and the Borrower may pay dividends to any direct or indirect parent thereof as and when necessary to enable such parent to effect such repurchases; (h) the Borrower may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gi) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (hj) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and[reserved]; (ik) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options; (l) [reserved]; (m) the Borrower may make payments described in Sections 9.9(a), 9.9(c), 9.9(f), 9.9(g), 9.9(h), 9.9(i), 9.9(k), 9.9(l) and 10.5(z); (n) the Borrower may pay dividends or make distributions in connection with the Transactions, including payments in respect of the Ultimate Parent’s and its Subsidiaries’ long term incentive plan or in respect of tax gross-ups and other deferred compensation; (o) [reserved]; (p) the Borrower may make distributions or payments of Receivables Fees; (q) [reserved]; (r) [reserved]; (s) the Borrower may make distributions of, or Investments in, Receivables Facility Assets for purposes of inclusion in any Permitted Receivables Financing, in each case made in the ordinary course of business or consistent with past practices; (t) the Borrower may make distributions, loans or other advances to Parent Guarantor, in an amount not to exceed $125,000,000 in the aggregate for all such distributions, loans or other advances made from the Closing Date solely to the extent that the proceeds of such distributions, loans or other advances are used by Parent Guarantor to satisfy payment obligations (including, without limitation, payment of principal, interest and any make-whole, prepayment or similar fees) owed by Parent Guarantor under (i) the Tex-La Indebtedness and (ii) the CT Lease Indebtedness; provided that no such distribution, loan or other advance shall be permitted pursuant to this clause (ii) unless (x) the Borrower or the Restricted Subsidiary, as applicable, that is the lessee under the applicable CT Lease retains its leasehold interest in respect of such CT Lease or (y) the assets subject to such CT Lease are contributed to the Borrower or a Restricted Subsidiary; and (u) the Borrower may make loans to, or permit letters of credit (including Letters of Credit) to be issued on behalf of, any of its direct or indirect parent companies or such parents’ Subsidiaries for working capital purposes or the cost of maintaining the headquarters building at Energy Plaza, in each case so long as made in the ordinary course of business and consistent with past practices and in an amount not to exceed $50,000,000. Notwithstanding anything to the contrary contained in Section 10 (including Section 10.5 and this Section 10.6), the Borrower will not, and will not permit any of its Restricted Subsidiaries to, pay any cash dividend or make any cash distribution on or in respect of the Borrower’s Stock or Stock Equivalents or purchase or otherwise acquire for cash any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower, for the purpose of paying any cash dividend or making any cash distribution to, or acquiring any Stock or Stock Equivalents of the Borrower or any direct or indirect parent of the Borrower for cash from the Permitted Holders, or guarantee any Indebtedness of any Affiliate of the Borrower for the purpose of paying such dividend, making such distribution or so acquiring such Stock or Stock Equivalents to or from the Permitted Holders, in each case by means of utilization of the cumulative dividend and investment credit provided by the use of the Applicable Amount or the exceptions provided by Sections 10.5(i), (m) and (v), and Section 10.7(ii), unless at the time and after giving effect to such payment, no Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)

Limitation on Dividends. ~~The~~ Neither Holdings nor the US Borrower will ~~not~~ declare or pay any dividends (other ~~than~~ than, (a) in respect of Holdings, dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock and (b) in respect of the US Borrower, dividends payable solely in its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an ~~Investment~~ investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of Holdings or the US Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing~~foregoing "Dividends"), ~~“dividends”):~~ provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) each of Holdings and the US Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~shares of its capital stock, provided that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) ~~the Borrower~~ Holdings may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its capital stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its capital stock) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of ~~the Borrower~~ Parent and its ~~Subsidiaries or any parent thereof~~Subsidiaries, with the proceeds of dividends from the US Borrower which shall also be permitted, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) ~~provided that~~the US Borrower and the Restricted Subsidiaries may make investments permitted by Section 10.5, ~~so long as~~ (~~other than with respect to clause (c)(z~~d) ~~below) no Default or Event~~ each of ~~Default exists or would exist after giving effect thereto,~~ Holdings and the US Borrower may pay dividends ~~on its Stock or Stock Equivalents~~to, seriatim, Holdings and any Parent Company, provided that (i) the aggregate amount of ~~all~~ such dividends (without duplication) paid ~~from the Original Closing Date~~ pursuant to this clause (cd) ~~(other than~~ shall not at any time exceed 50% of Cumulative Consolidated Net Income Available to Stockholders at such time less the amount of dividends previously paid pursuant to this clause (~~c)(x~~d) ~~below prior~~ following the last day of the most recent fiscal quarter for which Section 9.1 Financials have been delivered to ~~March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to~~ the Lenders under Section ~~10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ 9.1 and (ii) ~~all loans and advances made to any direct or indirect parent~~ at the time of the ~~Borrower pursuant to Section 10.5(m) in lieu~~ payment of any such dividends ~~permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis~~and after giving effect thereto, the Consolidated Total Debt to Consolidated EBITDA Ratio is on the date of such payment of such dividends shall be less than ~~7.0~~ 3.50:1.00, (e) each of the US Borrower and Holdings may declare and pay dividends and/or make distributions on its capital stock, as applicable, the proceeds of which will be used by Parent solely to ~~1.0~~pay taxes of Parent, PIK Holdco, Holdings, the US Borrower and the Subsidiaries as part of a consolidated tax filing group, along with franchise taxes, administrative and similar expenses related to its existence and ownership of PIK Holdco, Holdings, the US Borrower, as applicable, provided that the amount of such dividends does not exceed in any fiscal year the amount of such taxes and expenses payable for such fiscal year (it being understood that such expenses shall in no event exceed $~~200,000,000~~ 5,000,000 in the aggregate per fiscal year), (f) the US Borrower may declare and pay dividends and/or make distributions on its capital stock, the proceeds of which will be used by Holdings on and after August 15, 2007 solely to pay cash interest, if any, of the 2011 Senior Notes as and to the extent that payment of such interest in cash is required by the 2011 Senior Notes Indenture, (g) the US Borrower and Holdings may declare and pay dividends and/or make distributions on its capital stock, as applicable, from Available Excess Cash Flow, the proceeds of which will be used by Holdings and PIK Holdco solely to redeem, repurchase or retire 2011 Senior Notes, PIK Notes, PIK Refinancing Preferred Stock or PIK Refinancing Indebtedness if (bx) ~~if, on a Pro Forma Basis,~~ at the time of the payment of such dividends and after giving effect thereto the Consolidated Total Debt to Consolidated EBITDA Ratio ~~is greater~~ on the date of such payment of such dividends shall be less than ~~7.0~~ 2.25 to ~~1.0, $0 plus~~ 1.00 and (y) ifthe US Borrower applies an amount equal to the proceeds used for such redemption, repurchase or retirement of 2011 Senior Notes, PIK Notes, PIK Refinancing Preferred Stock or PIK Refinancing Indebtedness to prepay Term Loans outstanding hereunder in accordance with Section 5.1 hereof on ~~a Pro Forma Basis~~the date of any such redemption, repurchase or retirement of 2011 Senior Notes, PIK Notes, PIK Refinancing Preferred Stock or PIK Refinancing Indebtedness (except to the ~~Consolidated Total Debt to Consolidated EBITDA Ratio is~~ extent that the US Borrower has already applied not less than ~~7.0 to 1.0,~~ 50.0% of the ~~Applicable Amount plus (z)~~ cumulative amount of Excess Cash Flow for all fiscal years completed after the ~~Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on~~ Closing Date and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable prior to the ~~Borrower and the Restricted Subsidiaries in respect~~ date of ~~consolidated~~such redemption, ~~combined~~repurchase or retirement of 2011 Senior Notes, ~~unitary~~ PIK Notes, PIK Refinancing Preferred Stock or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary PIK Refinancing Indebtedness pursuant to Section ~~10.5; provided that (A~~5.1 or Section 5.2 hereof) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) ~~the Borrower~~ Holdings may issue PIK Refinancing Indebtedness or PIK Refinancing Preferred Stock in exchange for, or declare and pay dividends and/or make distributions on its capital stock from the ~~Borrower’s common stock following the first public offering~~ proceeds of the ~~Borrower’s common stock or the common stock~~ issuance by Holdings of any ~~of its direct~~ PIK Refinancing Indebtedness or ~~indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering~~ PIK Refinancing Preferred Stock to the extent such ~~net~~ proceeds are ~~not~~ utilized ~~in connection~~ by PIK Holdco substantially simultaneously with ~~other transactions permitted~~ such issuance to redeem, repurchase or retire, PIK Notes or Permitted Additional PIK Notes of PIK Holdco that are being refinanced or replaced by ~~Section 10.5, 10.6~~ such PIK Refinancing Indebtedness or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsPIK Refinancing Preferred Stock.

Appears in 1 contract

Samples: Credit Agreement (Rockwood Specialties Group Inc)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for ~~consideration~~considera- tion, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing~~foregoing "DIVIDENDS"), ~~“dividends”):~~ PROVIDED that, so long as no Default or Event of Default exists or would exist after giving effect thereto (except with respect to clause (f) below), (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part or pay dividends upon any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock~~ shares of its capital stock, PROVIDED that (X) such contributions or ~~Stock Equivalents, provided that~~ issuances shall not increase the Applicable Amount and (Y) such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) the Borrower may repurchase shares of its capital stock (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) held by officers, directors and employees of the Borrower and its Subsidiaries and may ~~pay~~ make dividends the proceeds of which are to ~~permit~~ be used by any direct or indirect parent ~~thereof to)~~ of the Borrower to repurchase shares of ~~its (or~~ the capital stock of any such ~~parent’s) Stock or Stock Equivalents~~ parent held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries or of any ~~parent thereof~~such parent, in either case so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement;~~ agreements, (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may declare and pay dividends on its ~~Stock or Stock Equivalents~~capital stock, ~~provided~~ PROVIDED that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time~~; for the avoidance of doubt~~, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may declare and pay ~~dividends:~~ dividends and/or make distributions to Intelsat Bermuda (~~i) the proceeds of which will~~ or any other entity that may be ~~used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by~~ a direct ~~or indirect~~ parent of the ~~Borrower in an amount not~~ Borrower) solely to ~~exceed the income tax liability~~ pay administrative and similar reasonable expenses related to ownership of the ~~Borrower and the Restricted Subsidiaries were they to file as a stand-alone group~~Borrower, ~~reduced by any such income taxes paid directly by~~ (e) the Borrower or may declare and pay dividends and/or make distributions to Intelsat Bermuda that represent the ~~Restricted Subsidiaries;~~ net proceeds from the issuance of the Senior 2006 Notes and approximately $65,000,000 million of available cash that are required to consummate the Acquisition, (iif) the ~~proceeds~~ Borrower may declare and pay dividends and/or make distributions to Intelsat Bermuda (or any other entity that may be a parent of ~~which shall~~ the Borrower) for the purpose of paying fees to the Sponsors of the types contemplated in Sections 9.9(a) (PROVIDED that such fees contemplated in Section 9.9(a) are paid quarterly when due), (b) and (c); PROVIDED that no such dividend or distribution contemplated by this clause 10.6(f) may be ~~used~~ paid to ~~allow~~ the extent that the Borrower has paid a like amount for a substantially similar service to the Sponsors directly, as contemplated in Section 9.9, (g) the Borrower may declare and pay dividends at the times and in the amounts required for any ~~direct or indirect~~ parent of the Borrower to pay ~~(A) its operating expenses incurred in~~ regularly scheduled interest on Indebtedness the ~~ordinary course~~ proceeds of ~~business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties),~~ which ~~are reasonable and customary and incurred in the ordinary course of business and attributable~~ have been contributed to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and ~~permitted~~ that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower incurred in accordance with Section 10.1; PROVIDED that the amount of cash dividends paid pursuant to ~~be paid~~ this clause (g) to enable any such parent to make any such payments and redemptions shall not exceed the amount necessary to make such payments and redemptions at such time, (h) for any taxable year, the Borrower may declare and pay dividends or other distributions to any parent of the Borrower if such parent is required to file a consolidated, unitary or similar tax return reflecting income of the Borrower or its Restricted Subsidiaries in an amount equal to the portion of such taxes attributable to the Borrower and/or its Restricted Subsidiaries that are not payable directly by the Borrower or its Restricted Subsidiaries, but not to exceed the amount that the Borrower or such Restricted ~~Subsidiary under this Agreement (including~~ Subsidiaries would have been required to pay in respect of ~~any initial public offering); (iii)~~ taxes if the ~~proceeds of which shall be used~~ Borrower and such Restricted Subsidiaries had been required to pay ~~franchise and excise~~ such taxes ~~and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and~~ directly as standalone taxpayers (~~iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower~~ or a ~~Restricted Subsidiary pursuant to Section 10.5; provided that (A)~~ standalone group separate from such ~~dividend shall be made substantially concurrently with the closing of such Investment~~parent), (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends ~~on the Borrower’s common stock following the first public offering of the Borrower’s common stock~~ to any parent entity (which may dividend or ~~the common stock of~~ on-loan such money to any of its ~~direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering~~ parent entities) to the extent that amounts equal to such ~~net proceeds~~ dividends are immediately contributed to the capital of, or paid as interest and/or principal on debt to, the Borrower or any Restricted Subsidiary; PROVIDED that such subsequent contribution shall not ~~utilized in connection with other transactions permitted by~~ constitute contributions of Disqualified Preferred Stock, a CI Contribution, a Permitted Equity Issuance pursuant to Section ~~10.5, 10.6~~ 12.13 or ~~10.7; and~~ a contribution for purposes of the definition of "Applicable Amount" and (ij) the Borrower may declare and pay dividends at the times and in an the amounts necessary to enable any parent of the Borrower to (i) make regularly scheduled interest payments on the Existing Parent Indebtedness and (ii) repay at final maturity the principal of 5.25% Senior Notes of Intelsat, Ltd.; PROVIDED that the amount ~~equal~~ of cash dividends paid pursuant to ~~withholding or similar Taxes payable or expected~~ this clause (j) to enable any such parent to make any such payments and redemptions shall not exceed the amount necessary to make such payments and redemptions at such time; PROVIDED, FURTHER, that the aggregate amount of interest payments with respect to the New Intelsat Bermuda Notes and the Intelsat Bermuda Intercompany Loans permitted to be paid pursuant to this clause (j) shall not exceed the cash interest payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with respect to the ~~exercise of stock options~~New Intelsat Bermuda Notes.

Appears in 1 contract

Samples: Credit Agreement (PanAmSat Holding CORP)

Limitation on Dividends. The Borrower will not ~~declare or~~ pay any dividends (other than dividends payable solely in ~~its Qualified Equity Interests~~the Capital Stock of the Borrower) or return any capital to its ~~stockholders (including any option holders)~~ equity holders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any ~~direct or indirect parent~~ Parent Entity now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation 159 LPL – Conformed A&R Credit Agreement or similar rights issued with respect to any of its Capital Stock), or set aside any funds for any of the foregoing purposes, or permit the Borrower or any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any shares of any class of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock ~~Equivalents~~ of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation or similar rights issued with respect to any of the Capital Stock of any Parent Entity of the Borrower or the Capital Stock of the Borrower) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that: (ai) the Borrower may (or may pay ~~dividends~~ Dividends to permit any ~~direct or indirect parent~~ Parent Entity thereof to) redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that ~~such new Stock or Stock Equivalents contain~~ any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the Capital Stock ~~or Stock Equivalents~~ redeemed ~~thereby;~~ thereby and (bii) the Borrower ~~may (or~~ and any Restricted Subsidiary may pay ~~dividends~~ Dividends payable solely in the Capital Stock (other than Disqualified Capital Stock not otherwise permitted by Section 10.1) of such Person; xx. xx long as no Default or Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay Dividends to ~~permit~~ any ~~direct~~ Parent Entity thereof, the proceeds of which are used to so redeem, acquire, retire or ~~indirect parent thereof to~~repurchase) ~~repurchase~~ shares of its Capital Stock (or any options or warrants or stock appreciation or similar rights issued with respect to any of such ~~parent’s~~Capital Stock) (or to allow any of the Borrower’s Parent Entities to so redeem, retire, acquire or repurchase their Capital Stock (or ~~Stock Equivalents~~ any options or warrants or stock appreciation or similar rights issued with respect to any of its Capital Stock)) held by any present or former ~~officer~~employees, ~~director~~ directors, officers, managers, members of management, independent contractors or ~~employee~~ consultants (or their respective ~~Affiliates, estates~~ Immediate Family Members or ~~immediate family members~~permitted transferees) of any Parent Entity of the Borrower, the Borrower and ~~its Subsidiaries~~ the Restricted Subsidiaries, with the proceeds of Dividends from, the Borrower, upon the death, disability, retirement or termination of employment of any ~~parent thereof, so long as~~ such ~~repurchase is pursuant to, and~~ Person or otherwise in accordance with ~~the terms of~~any stock option or stock appreciation or similar rights plan, ~~management~~ any management, director and/or employee stock ~~plans~~ownership or incentive plan, stock subscription ~~agreements or shareholder agreements~~ plan, employment termination agreement or any other ~~management~~ employment agreements or ~~employee benefit plan or~~ equity holders’ agreement~~; (c)~~ ; provided that, ~~so long as (other than~~ except with respect to ~~clause~~ non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash paid in respect of all such shares of Capital Stock (~~c)(z~~or any options or warrants or stock appreciation or similar rights issued with respect to any of such Capital Stock) ~~below~~so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (i) ~~no Default~~ $10,000,000 plus (ii) all Net Cash Proceeds obtained by Holdings or ~~Event~~ the Borrower during such calendar year from the sale of ~~Default exists~~ such Capital Stock to any present or ~~would exist after~~ former employees, directors, officers, managers, members of management, independent contractors or consultants (or their respective Immediate Family Members or permitted transferees) in connection with any permitted compensation and incentive arrangements plus (iii) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year; notwithstanding the foregoing, 100% of the unused amount of payments in respect of this Section 10.6(b)(i) (before giving effect ~~thereto~~to any carry forward) may be carried forward to the two immediately succeeding fiscal years (but not any other) and utilized to make payments pursuant to this Section 10.6(b) (any amount so carried forward shall be deemed to be used last in the subsequent fiscal year); 160 LPL – Conformed A&R Credit Agreement (i) to the extent constituting Dividends, the Borrower and any Restricted Subsidiary may make Investments permitted by Section 10.5 and (ii) each Restricted Subsidiary may make Dividends to the Borrower and to Restricted Subsidiaries (and, in the case of a Dividend by a non-wholly owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests); xx. xx the extent constituting Dividends, the Borrower and any Restricted Subsidiary may enter into and consummate transactions expressly permitted by any provision of Section 10.3 and the Borrower may pay ~~dividends on its~~ Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect the transactions permitted by such section; v. the Borrower may repurchase Capital Stock ~~or Stock Equivalents, provided that the amount~~ of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any ~~direct or indirect parent~~ Parent Entity of the ~~Borrower pursuant~~ Borrower, or the Borrower, as applicable, upon exercise of stock options or warrants to ~~Section 10.5(m) in lieu~~ the extent such Capital Stock represents all or a portion of ~~dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if~~the exercise price of such options or warrants, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and ~~in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d)~~ the Borrower may pay ~~dividends~~Dividends to a Parent Entity thereof as and when necessary to enable such Parent Entity to effect such repurchases; vi. [Reserved]; vii. the Borrower may make and pay Dividends: ~~(i)~~ 1. the proceeds of which will be used to pay ~~income~~ (or to make Dividends to allow any Parent Entity to pay) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns ~~filed by a direct~~ for the relevant jurisdiction of such Parent Entity or ~~indirect parent~~ the Borrower, but only to the extent of taxes that the Borrower ~~in an amount not~~ would have to ~~exceed the income~~ pay if it filed a tax ~~liability~~ return on a standalone basis for itself and its Subsidiaries or attributable to such Parent Entity’s ownership of the Borrower and ~~the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted~~ its Subsidiaries; ~~(ii)~~ 2. the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~pay (A~~pay) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 3,000,000 in any fiscal year plus ~~(B)~~ any actual, reasonable and customary indemnification claims made by directors or officers of ~~the Borrower (or~~ any ~~parent thereof) attributable to the ownership or operations~~ Parent Entity of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering)Borrower; ~~(iii)~~ 3. the proceeds of which shall be used to pay (or to make Dividends to allow any Parent Entity of the Borrower to pay) franchise ~~and excise~~ taxes and other fees, taxes and expenses required to maintain ~~the corporate existence of~~ any ~~direct or indirect parent~~ of the Borrower~~; and~~’s Parent Entities’ corporate existence; 4. the proceeds of which shall be used to pay (ivor to make Dividends to any Parent Entity thereof) to make Investments contemplated by Section 10.5(c) and Dividends contemplated by Section 10.6(b)); 5. the proceeds of which shall be used to pay (or to make Dividends to allow any ~~direct or indirect parent~~ Parent Entity of the Borrower to ~~finance~~ pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering, refinancing, issuance, incurrence, Disposition or acquisition or Investment transaction permitted ~~to be made~~ by this Agreement; 6. the ~~Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend~~ proceeds of which shall be ~~made substantially concurrently with the closing~~ used to pay customary salary, bonus and other benefits payable to officers, employees and consultants of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (any Parent Entity thereof to the extent ~~permitted in Section 10.5)~~ such salaries, bonuses and other benefits are attributable to the ownership or operation of the ~~Person formed or acquired into~~ Borrower and its Restricted Subsidiaries; 161 LPL – Conformed A&R Credit Agreement 7. the proceeds of which shall be distributed in connection with the Transactions; xxxx. xx addition to the foregoing Dividends, the Borrower may make additional Dividends, provided that any such Dividend shall not cause the aggregate amount of all such Dividends made pursuant to this Section 10.6(h) after the Fourth Amendment Effective Date measured at the time such Dividend is paid to exceed, after giving effect to such Dividend, the sum of (i) so long as no Event of Default has occurred and is continuing or ~~any~~ would result therefrom, an amount equal to the Remaining Dividends Amount at the time such Dividend is paid, plus (ii) so long as no Event of ~~its Restricted Subsidiaries~~ Default has occurred and is continuing or would result therefrom, an amount equal to the Available Amount at the time such Dividend is paid, plus (Ciii) an amount equal to the Available Equity Amount at the time such Dividend is paid, plus (iv) an amount equal to the Specified Dividend Amount; ix. the Borrower ~~shall comply~~ may make additional Dividends pursuant to this clause (i) if, after giving Pro Forma Effect to such Dividends, the Borrower would be in compliance with ~~Sections 9.11 and 9.12~~ a Consolidated Total Debt to Consolidated EBITDA Ratio as of the ~~extent applicable~~most recently ended Test Period on or prior to date of the making of any such Dividends, calculated on a Pro Forma Basis, as if such Dividends had occurred on the first day of such Test Period, that is no greater than 2.75:1.00; ~~(e) [Reserved]; (f)~~ x. the Borrower may (or may make Dividends to allow any ~~of the Restricted Subsidiaries may~~ Parent Entity to) (i) pay cash in lieu of fractional shares in connection with any ~~dividend~~Dividend, split or combination thereof or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; ~~(g)~~ xi. the Borrower may pay (or may make Dividends to allow any ~~dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h~~Parent Entity to pay) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends Dividends in an amount equal to withholding or similar ~~Taxes~~ taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or its Affiliates, or any of their respective ~~Affiliates,~~ estates or ~~immediate family members~~Immediate Family Members) and any repurchases of Capital Stock ~~or Stock Equivalents~~ in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; provided in each case that payments made under this Section 10.6(k) shall not exceed $5,000,000 in the aggregate; xii. the Borrower may make payments (or make Dividends to allow any Parent Entity to make such payments) described in Sections 9.9(c), (e), (h), (i), (j), (l) and (p) (subject to the conditions set out therein); xiii. the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 10.6; and xxx. xx long as no Event of Default is continuing or would result therefrom, the Borrower may make Dividends to any Parent Entity so that such Parent Entity may make Dividends to its equity holders or the equity holders of such parent in an aggregate amount not exceeding $2,200,000 which amount consists of 6.0% per annum of the cash contributed to the common Capital Stock of the Borrower from the net cash proceeds of the initial public offering of the Capital Stock of Holdings;

Appears in 1 contract

Samples: Amendment to Credit Agreement (LPL Financial Holdings Inc.)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ capital stock or the ~~Stock or Stock Equivalents~~ capital stock of any direct or indirect parent now or hereafter ~~outstanding~~outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock), or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of the Borrower, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) (all of the ~~foregoing,~~ foregoing “dividends”); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto (except with respect to clause (e) below): (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part or pay dividends upon any of its ~~Stock or Stock Equivalents~~ capital stock for another class of capital stock or rights to acquire its ~~(or such parent’s) Stock or Stock Equivalents~~ capital stock or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its capital stock; provided that (X) such ~~new Stock~~ contributions or ~~Stock Equivalents contain~~ issuances shall not increase the Applicable Amount and (Y) such other class of capital stock contains terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; (b) the Borrower may repurchase shares of its capital stock (or any options or warrants or stock appreciation rights issued with respect to any of its capital stock) held by officers, directors and employees of the Borrower and its Subsidiaries and may ~~pay~~ make dividends the proceeds of which are to ~~permit~~ be used by any direct or indirect parent ~~thereof to)~~ of the Borrower to repurchase shares of ~~its (or~~ the capital stock of any such ~~parent’s) Stock or Stock Equivalents~~ parent held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries or of any ~~parent thereof~~such parent, in either case so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may declare and pay dividends on its ~~Stock or Stock Equivalents,~~ capital stock; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable ~~Amount plus (z) the Applicable Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may declare and pay ~~dividends: (i) the proceeds of which will be used~~ dividends and/or make distributions to ~~pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect~~ any parent of the Borrower ~~in an amount not to exceed the income tax liability~~ or commonly controlled Affiliate of ~~the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by~~ any ~~such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect~~ parent of the Borrower to pay ~~(A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs~~ fees and expenses ~~(including administrative, legal, accounting~~ related to ownership and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations operation of the Borrower and its ~~Restricted~~ Subsidiaries or (C) including fees and expenses ~~otherwise due~~ (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 parent of the Borrower and general corporate overhead expenses of any parent of the Borrower); (e) the Borrower may declare and pay dividends and/or make distributions to Holdings (or any other entity that may be a parent of Holdings) for the purpose of paying fees to the Sponsors of the types contemplated in Sections 9.9(a) (provided that such fees contemplated in Section 9.9(a) are paid quarterly when due), (b) and (c); provided that no such dividend or distribution contemplated by this clause (e) may be paid to the extent that the Borrower has paid a like amount for a substantially similar service to the Sponsors directly, as contemplated in Section 9.9; (f) the Borrower may declare and pay dividends at the times and in the amounts required for any parent of the Borrower to pay regularly scheduled interest on Indebtedness the proceeds of which have been contributed to the Borrower or any of its Restricted Subsidiaries and ~~permitted to be paid by~~ that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower ~~or such Restricted Subsidiary under this Agreement (including~~ incurred in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to accordance with Section ~~10.5~~10.1; provided that ~~(A) such dividend shall be made substantially concurrently with~~ the ~~closing~~ amount of ~~such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents)~~ cash dividends paid pursuant to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; this clause (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with to enable any such ~~conversion~~ parent to make any such payments and ~~may~~ redemptions shall not exceed the amount necessary to make such payments ~~on convertible Indebtedness in accordance with its terms~~and redemptions at such time; (g) for any taxable year, the Borrower may declare and pay dividends or other distributions to any ~~dividend~~ parent of the Borrower if such parent is required to file a consolidated, unitary or ~~distribution within 60 days after~~ similar tax return reflecting income of the ~~date~~ Borrower or its Restricted Subsidiaries, in an amount equal to the portion of ~~declaration thereof~~such taxes attributable to the Borrower and/or its Restricted Subsidiaries that are not payable directly by the Borrower and/or its Restricted Subsidiaries, ~~if at~~ but not to exceed the ~~date of declaration~~ amount that the Borrower and/or such ~~payment~~ Restricted Subsidiaries would have ~~complied with~~ been required to pay in respect of such taxes if the ~~provisions of this Agreement~~Borrower and/or such Restricted Subsidiaries (as applicable) had been required to pay such taxes directly as standalone taxpayers (or a standalone group separate from such parent); (h) the Borrower may declare and pay dividends to any parent entity (which may dividend or on-loan such money to any of its parent entities) to the extent that amounts equal to such dividends are immediately contributed to the capital of, or paid as interest and/or principal on debt to, the Borrower or any Restricted Subsidiary; provided that such subsequent contribution shall not constitute contributions of Disqualified Preferred Stock, a CI Contribution, a Permitted Equity Issuance pursuant to Section 12.13 or a contribution for purposes of the definition of “Applicable Amount;”; (i) the Borrower may declare and pay dividends (and may declare dividends to be made to repay Investments made pursuant to Section 10.5(y)) at the times and in the amounts necessary to enable any parent of the Borrower to (i) make regularly scheduled interest payments on theany Existing Parent Indebtedness and (ii) repay, purchase, redeem, retire, defease or otherwise acquire for value the principal and premium, if any, of the Intelsat S.A. Notesany Existing Parent Indebtedness within ten (10) days of the maturity thereof; provided that the amount of cash dividends paid pursuant to this clause (i) to enable any such parent to make any such payments and redemptions shall not exceed the amount necessary to make such payments and redemptions at such time; (j) the Borrower may pay dividends the proceeds of which are used substantially simultaneously to pay interest or the principal amount of debt obligations owed to (x) any Credit Party and (y) to any Subsidiary that is not a Credit Party; provided that in the case of this clause (y) such dividends do not exceed $75,000,000 in the aggregate in any fiscal year; (k) the Borrower may declare and pay dividends or distributions to holders of any class or series of Disqualified Preferred Stock of the Borrower or any of its Restricted Subsidiaries issued or incurred in accordance with Section 10.1(B); provided that the aggregate amount of dividends declared and paid pursuant to this clause (k) does not exceed the Net Cash Proceeds actually received by the Borrower from any such sale of Disqualified Preferred Stock after the Closing Date; and (l) the Borrower may declare and pay dividends on the Borrower’s ordinary shares or common stock ~~following~~ (or the ~~first public offering~~ payment of dividends to any parent of the Borrower, as the case may be, to fund the payment by any parent of the Borrower of dividends on such entity’s ordinary shares or common ~~stock or the common stock of any of its direct or indirect parents after the Original Closing Date,~~ stock) of up to 67.5% per annum of the net proceeds received by the Borrower from any public offering of ordinary shares or common stock or contributed ~~as common equity~~ to the Borrower ~~in or~~ by any parent of the Borrower from any ~~such~~ public offering ~~to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6~~ of ordinary shares or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionscommon stock.

Appears in 1 contract

Samples: Amendment No. 6 (Intelsat S.A.)

Limitation on Dividends. ~~The Borrower will not declare or pay~~ Declare any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, on any shares of any class of its ~~Stock~~ Capital Stock, or ~~Stock Equivalents~~ make any payment on account of, or set apart assets for a sinking or other analogous fund for, the ~~Stock~~ purchase, redemption, retirement or ~~Stock Equivalents~~ other acquisition of any ~~direct~~ shares of any class of Capital Stock of the Company or ~~indirect parent~~ any of its Subsidiaries, or any warrants or options to purchase such Capital Stock, whether now or hereafter outstanding, or ~~set aside~~ make any ~~funds for~~ other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):its Subsidiaries; except that: (a) ~~the Borrower may (or~~ Subsidiaries may pay dividends ~~to permit any direct~~ directly or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous indirectly to the ~~Lenders in all respects material~~ Company or to ~~their interests as those contained~~ Domestic Subsidiaries which are directly or indirectly wholly-owned by the Company (or, in the ~~Stock~~ case of Foreign Subsidiaries, to the Company or ~~Stock Equivalents redeemed thereby~~to Subsidiaries of the Company which are directly or indirectly wholly-owned by the Company); (b) the ~~Borrower may (~~Company may, or may ~~pay dividends~~ advance or dividend cash to ~~permit any direct or indirect parent thereof~~ Holdings so long as all such amounts are used by Holdings to) , repurchase ~~shares~~ Capital Stock of ~~its (or such parent’s) Stock or Stock Equivalents held~~ Holdings owned by ~~any~~ former, present or ~~former officer, director~~ future employees of Holdings or ~~employee (~~its Subsidiaries or their ~~respective Affiliates~~assigns, estates ~~or immediate family members~~and heirs; provided that the aggregate amount expended pursuant to this clause (b) shall not exceed $3,000,000 during the term of this Agreement, less any such amounts expended pursuant to subparagraph 9.12(b) of the ~~Borrower~~ First Lien Credit Agreement prior to the Closing Date and ~~its Subsidiaries~~ plus any amounts contributed to the Company as a result of resales of such repurchased shares of Capital Stock on or ~~any parent thereof~~after July 11, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement2003; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)[RESERVED]; (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries[RESERVED]; (iie) the Company may pay cash dividends or distributions to Holdings for the purpose of paying, and so long as all proceeds ~~of which shall be~~ thereof are promptly used by Holdings to ~~allow any direct or indirect parent of the Borrower to pay (A)~~ pay, its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (~~including administrative~~including, ~~legal~~without limitation, legal and accounting expenses and similar ~~expenses~~ expenses); provided ~~by third parties), which are reasonable~~ that the aggregate amount of dividends and ~~customary and incurred in the ordinary course of business and attributable~~ distributions paid to ~~the ownership or operations of the Borrower,~~ Holdings pursuant to this subsection 9.12(e) shall not to exceed $~~3,500,000~~ 2,000,000 in any fiscal year ~~plus (B) any reasonable and customary indemnification claims made by directors or officers~~ of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]Holdings; (f) the ~~Borrower or any of the Restricted Subsidiaries~~ Company may ~~(i)~~ pay cash ~~in lieu~~ dividends or distributions to Holdings for the purpose of ~~fractional shares in connection~~ paying, and so long as all proceeds thereof are promptly used by Holdings to pay, franchise taxes and federal, state and local income taxes and interest and penalties with respect thereto, if any, payable by Holdings; provided that any ~~dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request~~ refund shall be promptly returned by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its termsHoldings to the Company; (g) the ~~Borrower~~ Company and its Subsidiaries may pay or make dividends or distributions to any ~~dividend or distribution within 60 days after~~ holder of its Capital Stock in the ~~date~~ form of ~~declaration thereof, if at~~ additional shares of Capital Stock of the ~~date of declaration~~ same class and type; provided that such ~~payment would have complied with~~ additional shares shall be pledged to the ~~provisions of this Agreement;~~Administrative Agent to the extent required by subsection 8.9; and (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower Company may pay dividends ~~in an amount equal~~ or distributions to ~~withholding or similar Taxes payable or expected~~ Holdings to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsallow Holdings to make loans permitted under subsection 9.6(f).

Appears in 1 contract

Samples: Credit Agreement (Werner Holding Co Inc /Pa/)

Limitation on Dividends. The ~~Borrower~~ Parent will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified~~ Equity Interests (other than Disqualified Equity Interests)) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ Equity Interests or the ~~Stock or Stock Equivalents~~ Equity Interests of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of ~~the~~ its Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~8.05) any ~~Stock or Stock Equivalents~~ Equity Interests of the ~~Borrower~~Parent, now or hereafter outstanding (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~provided that no Event of Default exists or would exist after giving effect thereto: (a) the ~~Borrower~~ Parent may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ Equity Interests for another class of its ~~(or such parent’s) Stock or Stock Equivalents~~ Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~Equity Interests, provided that such new ~~Stock or Stock Equivalents~~ Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ Equity Interests redeemed thereby; (b) the ~~Borrower~~ Parent may (or may ~~pay dividends~~ make Dividends to permit any direct or indirect parent thereof to) (i) repurchase shares of its (or such parent’s) ~~Stock or Stock Equivalents~~ Equity Interests held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the ~~Borrower~~ Parent and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements to the extent permitted under Section 8.05(k); and (ii) repurchase, redeem or otherwise acquire or retire for value Equity Interests in lieu of withholding Taxes in connection with any exercise, vesting, settlement or exchange, as applicable, of stock options, warrants, restricted stock, restricted stock units or other similar rights; provided that cancellation of Indebtedness owing to the Parent from members of management of the Parent, any of the Parent’s direct or indirect parent companies or any of the Parent’s Restricted Subsidiaries in connection with a repurchase, redemption or other acquisition or retirement of Equity Interests of any of the Parent’s direct or indirect parent companies will not be deemed to constitute a Dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that, so long as (other than~~ the Parent may pay Dividends with respect to ~~clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on~~ its ~~Stock or Stock Equivalents~~Equity Interests, provided that (i) the amount of ~~all~~ any such ~~dividends paid from the Original Closing Date~~ Dividends pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to the Available Amount at such time, and (~~x)(a~~ii) ~~if,~~ the First Lien Leverage Ratio shall be less than 3.50:1.00 (and not less than zero) on a Pro Forma ~~Basis, the Consolidated Total Debt~~ Basis (after giving effect to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(cDividend); (d) the ~~Borrower~~ Parent may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower Dividends on its common stock in an amount per share not ~~to exceed the income tax liability~~ exceeding 6.0% per annum of the ~~Borrower and~~ QIPO Price per share, so long as the ~~Restricted Subsidiaries were they~~ Consolidated Interest Coverage Ratio shall not be less than 2.00:1.00 on a Pro Forma Basis (after giving effect to ~~file as a stand-alone group, reduced by any~~ such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third partiesdistribution), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) ~~[Reserved];~~the Parent may pay additional Dividends with respect to its Equity Interests, provided that the Total Leverage Ratio shall be less than 2.50:1.00 (and not less than zero) on a Pro Forma Basis (after giving effect to such Dividend); and (f) to the ~~Borrower or any~~ extent not covered by the foregoing subclauses (a) through (e), the Parent may pay Dividends with respect to its Equity Interests in an amount not exceeding the greater of ~~the Restricted Subsidiaries may~~ (i) ~~pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition~~ $75,000,000 and (ii) ~~honor any conversion request by a holder~~ 2.50% of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if Consolidated Total Assets as at the date of ~~declaration~~ such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsDividend.

Appears in 1 contract

Samples: Term Loan Credit Agreement (MRC Global Inc.)

Appears in 1 contract

Samples: Credit Agreement (Panamsat Corp /New/)

Limitation on Dividends. The Borrower will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock or rights, warrants or options to purchase its capital stock) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ capital stock now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares), or set aside any funds for any of the foregoing ~~purposes~~purposes (other than, in each case, in connection with an investment permitted by Section 10.5), or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any ~~Stock or Stock Equivalents~~ shares of any class of the capital stock of the Borrower, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of such shares) (all of the ~~foregoing~~foregoing "Dividends"), ~~“dividends”):~~ provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto, (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any capital stock of ~~its Stock or Stock Equivalents~~ the Borrower for another class of ~~its (~~capital stock or ~~such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances~~ rights to acquire capital stock of ~~new Stock or Stock Equivalents~~the Borrower, provided that such ~~new Stock or Stock Equivalents contain~~ other class of capital stock contains terms and provisions at least as advantageous to the Lenders ~~in all respects material to their interests~~ as those contained in the ~~Stock or Stock Equivalents~~ capital stock redeemed thereby; , (b) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its capital stock (and/or warrants for or ~~such parent’s~~options or stock appreciation rights in respect thereof) ~~Stock or Stock Equivalents~~ held by ~~any present or former officer~~its officers, ~~director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower~~ directors and ~~its Subsidiaries or any parent thereof,~~ employees so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements ~~or any other management or employee benefit plan or agreement;~~ and (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Borrower may declare and pay dividends on its ~~Stock or Stock Equivalents~~capital stock, provided that (i) the aggregate amount of ~~all such~~ dividends paid ~~from the Original Closing Date~~ pursuant to this clause (c) shall not at any time exceed the sum of (~~other than dividends paid pursuant~~ A) $30,000,000 plus (B) 50% of Cumulative Consolidated Net Income Available to ~~clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date~~ Common Stockholders at such time and (ii) ~~all loans and advances made to any direct or indirect parent~~ at the time of the ~~Borrower pursuant to Section 10.5(m) in lieu~~ payment of any such dividends ~~permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis~~and after giving effect thereto, the Consolidated Total Debt to Consolidated EBITDA Ratio ~~is less than 7.0 to 1.0, $200,000,000 or (b) if,~~ on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of ~~declaration thereof, if at the date of declaration~~ such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such ~~payments including deemed repurchases in connection with the exercise of stock options~~dividends shall be less than 3.00:1.00.

Appears in 1 contract

Samples: Revolving Credit Agreement (Kindercare Learning Centers Inc /De)

Limitation on Dividends. ~~The Borrower will not declare~~ Declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~Capital Stock) or return any capital to its ~~stockholders (including any option holders)~~ shareholders or make any other distribution, payment or delivery of property or cash to its ~~stockholders~~ shareholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Capital Stock or the Capital Stock ~~Equivalents or the Stock or Stock Equivalents~~ of any direct or indirect parent of the Borrower now or hereafter ~~outstanding,~~ outstanding (or ~~set aside~~ any ~~funds for~~ options or warrants or stock appreciation rights issued with respect to any of ~~the foregoing purposes~~its Capital Stock), or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5)~~ 6.05 (except for any such Investment involving the purchase of Capital Stock ~~or Stock Equivalents~~ of the Borrower from shareholders of the Borrower, ) any shares of any class of the Capital Stock of the Borrower now or hereafter outstanding (or any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock) (all of the ~~foregoing,~~ foregoing “~~dividends~~Dividends”):); provided that so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its Capital Stock ~~or Stock Equivalents~~ for another class of ~~its (or such parent’s)~~ Capital Stock or rights to acquire its Capital Stock ~~Equivalents~~ or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents,~~ shares of its Capital Stock; provided that such ~~new~~ other class of Capital Stock ~~or Stock Equivalents contain~~ contains terms and provisions at least as advantageous to the Lenders in all material respects ~~material to their interests~~ as those contained in the Capital Stock ~~or Stock Equivalents~~ redeemed thereby; (b) the Borrower may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ repurchase shares of its Capital Stock (or ~~such parent’s~~any options or warrants or stock appreciation rights issued with respect to any of its Capital Stock) ~~Stock or Stock Equivalents~~ held by ~~any present~~ current or former ~~officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Borrower and its Subsidiaries or in an aggregate amount not to exceed (i) $10,000,000 in any ~~parent thereof~~fiscal year and (ii) $50,000,000 in the aggregate from and after the Closing Date, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements, employment agreements or shareholder agreements or ~~any other management or employee benefit plan or agreement~~termination agreements; (c) ~~provided that, so long as (other than with respect~~ in addition to clause (~~c)(z~~d) below~~) no Default or Event of Default exists or would exist after giving effect thereto~~, the Borrower or any Restricted Subsidiary may ~~pay dividends~~ declare and make distributions on its Capital Stock at any time or ~~Stock Equivalents,~~ pay other Dividends; provided that the aggregate amount of ~~all~~ such ~~dividends~~ distributions or Dividends paid ~~from~~ by the ~~Original Closing~~ Borrower and any such Restricted Subsidiary on or after the Third Restatement Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed ~~an amount equal to (x)(a) if, on a Pro Forma Basis,~~ the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Available Amount at the time of such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)distribution or Dividend; (d) in addition to clause (c) above, the Borrower ~~may pay dividends:~~ (i) ~~the proceeds of which will be used to pay income tax liability attributable~~ may declare and make distributions on its Preferred Stock pursuant to the ~~Borrower and~~ terms of such Preferred Stock (as in effect on the ~~Restricted Subsidiaries in respect of consolidated~~Closing Date), combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) ~~the proceeds of which shall be used to allow any direct~~ may redeem in whole or ~~indirect parent of the Borrower to pay (A) its operating expenses incurred~~ in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or part any of its ~~Restricted Subsidiaries~~ Preferred Stock with proceeds from substantially concurrent equity contributions or issuances of new shares of its Capital Stock (other than Disqualified Stock) and ~~permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering);~~ (iii) ~~the proceeds~~ may redeem in whole or in part any of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently its Sponsor Preferred Stock with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (Net Cash Proceeds from Asset Sales but only to the extent ~~permitted~~ such Net Cash Proceeds were first offered to and declined by Term Lenders in accordance with the provisions of Section ~~10.5~~2.13(e) ~~of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries~~ and (Cf) and not otherwise used for purposes set forth in the ~~Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable~~definition of “Retained Prepayment Amount”; (e) ~~[Reserved]~~any Restricted Subsidiary may pay any Dividend (or, in the case of any partnership or limited liability company, any similar distribution) to (i) any Loan Party or (ii) the holders of its Equity Interests on a pro rata basis; (f) the Borrower ~~or any~~ may make payments to holders of the ~~Restricted Subsidiaries may (i) pay cash~~ Borrower’s Capital Stock in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu the issuance of fractional shares ~~in connection with any such conversion and may make payments on convertible Indebtedness in accordance with~~ of its ~~terms;~~Capital Stock; and (g) the Borrower may ~~pay~~ enter into transactions for the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any ~~dividend~~ rights granted to all the holders of Capital Stock of the Borrower pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or ~~distribution within 60 days after~~ other retirement of such rights is not for the ~~date~~ purpose of ~~declaration thereof, if at~~ evading the ~~date of declaration such payment would have complied with the provisions~~ limitations of this ~~Agreement;~~ covenant (h) all as determined in good faith by the ~~Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering~~ Board of Directors of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options).

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

Limitation on Dividends. The Borrower will not declare or pay any dividends ~~(other than dividends payable solely in its Qualified Equity Interests)~~ or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders ~~as such~~on account of such Stock and Stock Equivalents, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or ~~the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or~~ set aside any funds for any of the foregoing purposes, ~~or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration~~ (other than dividends payable solely in ~~connection with an Investment permitted by Section 10.5) any~~ its Stock or Stock Equivalents ~~of the Borrower, now or hereafter outstanding~~ (other than Disqualified Stock) (all of the foregoing, “dividends”):), provided: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents~~Equivalents (other than any Cure Amount, any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(b)(i)); provided that (i) such new Stock or Stock Equivalents contain terms and provisions (taken as a whole) at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby~~thereby and (ii) the cash proceeds from any such contribution or issuance shall not increase the Applicable Equity Amount; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or ~~shareholder agreements~~ stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 10.6(b), when combined with Investments made pursuant to Section 10.5(k), do not exceed in any calendar year $25,000,000 (which shall increase to $50,000,000 subsequent to the consummation of an initial public offering of, or registration of, Stock by the Borrower (or any direct or indirect parent company of the Borrower) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $60,000,000 in any calendar year (which shall increase to $100,000,000 subsequent to the consummation of an underwritten public offering of, or registration of, Stock by the Borrower or any direct or indirect parent corporation of the Borrower)); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds from the sale of Stock (other than Disqualified Stock, any Cure Amount, any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(a)) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies) or any Subsidiary of the Borrower that occurs after the Closing Date; provided that such Stock or proceeds of such Stock will not increase the Applicable Equity Amount; plus (ii) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (iii) the amount of any dividends or distributions previously made with the cash proceeds described in clauses (i) and (ii) above; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies), or any Subsidiary of the Borrower in connection with a repurchase of Stock or Stock Equivalents of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that,~~ so long as ~~(other than with respect to clause (c)(z) below)~~ no ~~Default or~~ Event of Default ~~exists~~ under Section 11.1 or Section 11.5 shall have occurred and be continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (zx) the Applicable Equity Amount at the time such dividends are paid plus (y) the Applicable Amount at such time~~; for the avoidance of doubt~~, ~~amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c)~~ provided that in respect of any dividends ~~previously paid~~ made in ~~compliance with this Section 10.6(c)~~reliance of clause (ii) of the definition of Applicable Amount, (i) the Consolidated Total Net Leverage Ratio shall not be greater than 4.50 to 1.0 (calculated on a Pro Forma Basis after giving effect to such dividends) and (ii) no Event of Default shall have occurred and be continuing or would result therefrom; (d) the Borrower may ~~pay~~ make dividends, distributions or loans to any direct or indirect parent company of the Borrower in amount required for any such direct or indirect parent to pay, in each case without duplication: (i) foreign, federal, state and local income Taxes, to the ~~proceeds of which will be used to pay~~ extent such income ~~tax liability~~ Taxes are attributable to the income of the Borrower and its Subsidiaries; provided that for purposes of this Section 10.6(d)(i), such Taxes shall be deemed to equal the ~~Restricted~~ amount that the Borrower and its Subsidiaries would be required to pay in respect of foreign, federal, state and local income Taxes if the Borrower were the parent of a standalone consolidated, combined, affiliated, unitary or ~~affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the~~ similar income tax ~~liability~~ group including its Subsidiaries; provided, further, that the permitted payment pursuant to this clause (i) with respect to any taxes of any Unrestricted Subsidiary or Excluded Project Subsidiary for any taxable period shall be limited to the ~~Borrower and the Restricted Subsidiaries were they~~ amount actually paid with respect to ~~file as a stand-alone group, reduced~~ such period by ~~any~~ such ~~income taxes paid directly by~~ Unrestricted Subsidiary or Excluded Project Subsidiary to the Borrower or its Restricted Subsidiaries for the ~~Restricted Subsidiaries~~purposes of paying such taxes; (ii) ~~the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its~~ such parents’ and their respective Subsidiaries’ general operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties~~), which~~ ) to the extent such costs and expenses are ~~reasonable and customary and incurred in the ordinary course of business and~~ attributable to the ownership or ~~operations~~ operation of the ~~Borrower~~Borrower and its Restricted Subsidiaries and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any ~~reasonable and customary~~ indemnification claims made by directors or officers of the Borrower (or any parent thereof) to the extent such claims are attributable to the ownership or ~~operations~~ operation of the Borrower or any Restricted Subsidiary and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower (or any ~~of its~~ parent thereof and such parent’s Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary and ~~permitted~~ not prohibited to be paid by the Borrower ~~or such~~ and its Restricted ~~Subsidiary under this Agreement (including in respect of any initial public offering)~~Subsidiaries hereunder; (iii) ~~the proceeds of which shall be used to pay~~ franchise and excise ~~taxes~~ Taxes and other fees, ~~taxes~~ Taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower~~; and~~; (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a any Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the ~~merger~~ merger, amalgamation or consolidation (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any Restricted Subsidiary, (C) the Borrower or such Restricted Subsidiary shall comply with Section 9.11 and Section 9.12 to the extent applicable, (D) the aggregate amount of such dividends shall reduce the ability of the Borrower and the Restricted Subsidiary to make Investments under the applicable clauses of Section 10.5 by such amount and (E) any property received in connection with such transaction shall not increase the Applicable Equity Amount; (v) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition or disposition transaction payable by the Borrower or the Restricted Subsidiaries; (vi) customary salary, bonus, severance and other benefits payable to officers, employees or consultants of any direct or indirect parent company (and such parent’s Subsidiaries) of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower, its Restricted Subsidiaries and (~~C) the Borrower shall comply with Sections 9.11 and 9.12~~ to the extent ~~applicable~~of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries; (evii) [~~Reserved~~reserved]; (fviii) to the extent constituting dividends, amounts that would be permitted to be paid directly by the Borrower or its Restricted Subsidiaries under Section 9.9(a); (ix) AHYDO Catch-Up Payments with respect to Indebtedness of any direct or indirect parent of the ~~Restricted Subsidiaries may~~ Borrower; provided that the proceeds of such Indebtedness have been contributed to the Borrower as a capital contribution; and (ix) ~~pay cash in lieu~~ expenses incurred by any direct or indirect parent of ~~fractional shares~~ the Borrower in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering ~~of the Borrower’s common stock~~ or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases sale of Stock or Stock Equivalents ~~in consideration~~ or Indebtedness (i) where the net proceeds of such ~~payments including deemed repurchases~~ offering or sale are intended to be received by or contributed to the Borrower or a Restricted Subsidiary, (ii) in ~~connection with~~ a pro-rated amount of such expenses in proportion to the ~~exercise~~ amount of ~~stock options.~~such net proceeds intended to be so received or contributed or (iii) otherwise on an interim basis prior to completion of such offering so long as any direct or indirect parent of the Borrower shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed;

Appears in 1 contract

Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)

Limitation on Dividends. ~~The Borrower will not declare~~ So long as any share of the Series G Preferred Stock remains outstanding, without the consent of each of the holders of the Series G Preferred Stock, no dividend or ~~pay~~ distribution shall be declared or paid on the Common Stock or any ~~dividends~~ other shares of Junior Stock (other than dividends payable solely in ~~its Qualified Equity Interests~~shares of Common Stock) or ~~return any capital to its stockholders (including any option holders)~~ Parity Stock, and no Common Stock, Junior Stock or ~~make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire~~Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise acquired for ~~consideration,~~ consideration by the Company or any of its subsidiaries. The foregoing limitation shall not apply to (i) a dividend payable on any Junior Stock in shares of any ~~class~~ other Junior Stock, or to the acquisition of ~~its~~ shares of any Junior Stock in exchange for, or through application of the proceeds of the sale of, shares of any other Junior Stock; (ii) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with ~~an Investment permitted by Section 10.5)~~ the administration of any Stock or Stock Equivalents of the Borrower, now or hereafter outstanding (all of the foregoing, “dividends”): (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the amount of all such dividends paid from the Original Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Borrower may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business ~~and other corporate overhead costs and expenses~~ (including ~~administrative, legal, accounting~~ purchases to offset the Share Dilution Amount (as defined below) pursuant to a publicly announced repurchase plan) and ~~similar expenses~~ consistent with past practice or to satisfy applicable tax withholdings with respect to employee equity-based compensation; provided ~~by third parties), which are reasonable and customary and incurred~~ that any purchases to offset the Share Dilution Amount shall in no event exceed the ~~ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus~~ Share Dilution Amount; (Biii) any ~~reasonable and customary indemnification claims made by directors~~ dividends or ~~officers~~ distributions of ~~the Borrower (~~rights or Junior Stock in connection with a stockholders’ rights plan or tax asset protection plan or any ~~parent thereof~~redemption or repurchase of rights pursuant to any stockholders’ rights plan or tax asset protection plan; (iv) ~~attributable to~~ the ~~ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable~~ acquisition by the ~~Borrower~~ Company or any of its ~~Restricted Subsidiaries and permitted to be paid by~~ subsidiaries of record ownership in Junior Stock or Parity Stock for the ~~Borrower or such Restricted Subsidiary under this Agreement (including in respect~~ beneficial ownership of any ~~initial public offering);~~ other persons (~~iii)~~ other than the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower Company or any of its ~~Restricted Subsidiaries and~~ subsidiaries), including as trustees or custodians; (Cv) the ~~Borrower shall comply with Sections 9.11 and 9.12 to~~ conversion of the ~~extent applicable;~~ Series G Preferred Stock into Common Stock; (~~e) [Reserved]; (f~~vi) the ~~Borrower or any~~ dividend of Warrants contemplated by Section 9.04 of the ~~Restricted Subsidiaries may~~ Transaction Agreement; (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gvii) the ~~Borrower may pay any dividend~~ exchange or ~~distribution within 60 days after the date~~ conversion of ~~declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;~~ (hA) ~~the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock~~ Junior Stock for or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with into other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Junior Stock ~~or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.~~or

Appears in 1 contract

Samples: Master Transaction Agreement

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent ~~now~~ outstanding as of the Original Closing Date or ~~hereafter~~ thereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Parent Borrower, ~~now~~ outstanding as of the Original Closing Date or ~~hereafter~~ thereafter outstanding (all of the foregoing, “dividends”):), provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its (or such parent’s) Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents,~~ Equivalents (other than any amount received by the Parent Borrower in satisfaction of the requirements of the first sentence of Section 10.7(d)),; provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Parent Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, ,; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x) of the Original Credit Agreement, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Parent Borrower to pay) (A) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns for the relevant jurisdiction of such parent attributable to the Parent Borrower or its Restricted Subsidiaries determined as if the Parent Borrower and its Restricted Subsidiaries filed by separately and (B) for as long as Hercules Holdings is a direct or indirect parent of the Parent Borrower, distributions equal to any taxable income of Holdings or Hercules Holdings resulting from the hedging arrangements entered into by Hercules Holdings on or about September 13, 2006 and with respect to which the Parent Borrower ~~in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as~~ will beis a ~~stand-alone group, reduced~~ counterparty multiplied by ~~any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~45%; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000 in any fiscal year of the Parent Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any of its direct or indirect parent of the Parent Borrower; and (iv) to any direct or indirect parent of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or ~~any of~~ its Restricted Subsidiaries and (C) the Parent Borrower shall comply with ~~Sections~~ Section 9.11 ~~and 9.12~~ to the extent applicable;; and (e) ~~[Reserved];~~the Parent Borrower may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings Debt, solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends, (i) the Parent Borrower shall be in compliance with the covenant set forth in Section 10.910.8 of the CF Agreement for the most recently ended Test Period for which Section 9.1 Financials have been delivered and (ii) the Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or equal to 1.75 to 1.00 for the most recently ended Test Period— for which Section 9.1 Financials have been delivered; and (f) dividends that satisfy the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsPayment Conditions.

Appears in 1 contract

Samples: Credit Agreement (HCA Holdings, Inc.)

Limitation on Dividends. The Borrower will ~~not~~ not, declare or pay any dividends (other than dividends payable solely in its ~~Qualified Equity Interests~~capital stock) or make, declare or otherwise authorize any return ~~any~~ of capital to its ~~stockholders (including any option holders)~~ shareholders or ~~make~~ make, declare or otherwise authorize any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its ~~Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent~~ capital stock now or hereafter ~~outstanding~~outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares but not including any convertible debt), or set aside any funds for any of the foregoing purposes, or permit any of ~~the Restricted~~ its Subsidiaries to purchase or otherwise acquire for consideration ~~(other than in connection with an Investment permitted by Section 10.5)~~ any ~~Stock or Stock Equivalents~~ shares of any class of the ~~Borrower,~~ capital stock of the Borrower now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by the Borrower with respect to its capital stock) (all of the ~~foregoing~~foregoing made, ~~“dividends”~~declared or authorized after the Original Effective Date, "Dividends"), provided that so long as no Event of Default then exists in the case of clauses (i), (ii), (iii), (v) and (vi): (ai) the Borrower may (issue shares of Borrower Common Stock upon the exercise of any warrants or options or upon the conversion or redemption of any convertible or redeemable preferred or preference stock, and in connection with any such exercise, conversion or redemption the Borrower may pay ~~dividends to permit any direct or indirect parent thereof to) redeem~~ cash in ~~whole or in part any~~ lieu of ~~its Stock or Stock Equivalents for another class~~ issuing fractional shares of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed therebyBorrower Common Stock; (bii) the Borrower may repurchase Borrower Common Stock (and/or options or ~~may pay dividends to permit any direct or indirect parent thereof to~~warrants in respect thereof) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, director or employee (or their respective Affiliates, estates or immediate family members) of the Borrower and its Subsidiaries or any parent thereof, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements or any other management or employee benefit plan or agreement; (c) provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on its Stock or Stock Equivalents, provided that the aggregate amount of cash paid in respect of all such ~~dividends paid from the Original Closing Date~~ repurchases in any calendar year pursuant to this clause (cii) does not exceed $15,000,000; (iii) the Borrower may declare and pay, or otherwise pay or make, any other ~~than dividends~~ Dividend, provided that, at the time it is, in the case of a Non-Declared Dividend, paid or made and, in the case of any other Dividend, declared or otherwise authorized, the aggregate amount of such Dividend, when added to all Non-Declared Dividends theretofore paid or made and any other Dividends theretofore declared or otherwise authorized (or paid) pursuant to ~~clause (c)(x) below prior to March 31, 2015~~this Section 8.05(iii), ~~when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from~~ after the ~~2014 July Repricing~~ Original Effective Date ~~and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c)~~ shall not exceed an amount equal to the sum of (~~x)(a~~x) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0,~~ $~~200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0~~ 500,000,000 plus (y) ~~if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount~~ 50% of Cumulative Adjusted Cash Net Income plus (z) the ~~Applicable Equity Amount~~ aggregate cash proceeds (net of underwriting discounts and commissions) received by the Borrower after the Original Effective Date from issuances of its equity securities (provided that the aggregate amount of such aggregate net cash proceeds received in any twelve-month period shall be deemed not to exceed $250,000,000 for purposes of this Section 8.05(iii)), in each case determined at, in the case of a Non-Declared Dividend, the date paid or made and, in the case of any other Dividend, the date declared or otherwise authorized, provided that such Dividend (other than a Dividend that is a Non-Declared Dividend) is paid within 90 days of the making of such declaration or other authorization, provided that Dividends may only be paid or made by the Borrower under this clause (iii) if at the time of, in the case of a Non-Declared Dividend, the date paid or made and, in the case of any other Dividend, the date declared or otherwise authorized, the excess of (i) the sum of the Total Unutilized Commitment and Permanent Surplus Cash, in each case at such time~~; for~~ , over (ii) the ~~avoidance~~ sum of ~~doubt~~(A) the amount of, ~~amounts prepaid~~ in ~~reliance on~~ the case of a Non-Declared Dividend, the aggregate amount of such Non-Declared Dividend plus any other Dividends theretofore declared or otherwise authorized but then unpaid and, in the case of any other Dividend, the amount thereof so declared or otherwise authorized and ~~in compliance with Section 10.7(a)(y)(i~~(B) the outstanding principal or face amount of Supported CP at such time, shall ~~not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c)~~equal at least $225,000,000; (div) the Borrower may ~~pay dividends: (i) the proceeds~~ issue and exchange shares of ~~which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect~~ any class or series of ~~consolidated, combined, unitary~~ its common stock now or ~~affiliated tax returns filed by a direct~~ hereafter outstanding for shares of any other class or ~~indirect parent~~ series of the Borrower in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as a stand-alone group, reduced by any such income taxes paid directly by the Borrower its common stock now or ~~the Restricted Subsidiaries~~hereafter outstanding; (iiv) the ~~proceeds of which shall be used to allow~~ Borrower may, in connection with any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any reclassification of its ~~Restricted Subsidiaries~~ common stock and any exchange permitted ~~to be paid~~ by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and clause (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investmentabove, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) [Reserved]; (f) the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of issuing fractional shares ~~in connection with~~ of any ~~dividend, split~~ class or ~~combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder~~ series of ~~convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with~~ its ~~terms;~~common stock; and (gvi) after the consummation of the NGH Acquisition (and so long as the Borrower has theretofore delivered to the Administrative Agent the officer's certificate required to be delivered pursuant to clause (z) of Section 8.02(a)(iv)), the Borrower may pay or make Dividends with the proceeds of any ~~dividend~~ cash dividends or distribution ~~within 60 days after~~ received by it from Acquisition Corp. or NGH (as the ~~date~~ surviving corporation of ~~declaration thereof~~the merger pursuant to the NGH Acquisition), ~~if at~~ provided that the ~~date~~ aggregate amount of ~~declaration such payment would have complied with the provisions of this Agreement; (h)~~ Dividends paid or made by the Borrower ~~may declare and pay dividends on~~ pursuant to this clause (vi) does not exceed the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsCertified Acquired NGH Cash Amount.

Appears in 1 contract

Samples: Credit Agreement (Rj Reynolds Tobacco Holdings Inc)

Limitation on Dividends. The ~~Borrower~~ Parent will not declare or pay any dividends (other than dividends payable solely in its ~~Qualified~~ Equity Interests) or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its ~~Stock or Stock Equivalents~~ Equity Interests or the ~~Stock or Stock Equivalents~~ Equity Interests of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of ~~the~~ its Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section ~~10.5~~10.05) any ~~Stock or Stock Equivalents~~ Equity Interests of the ~~Borrower~~Parent, now or hereafter outstanding (all of the ~~foregoing~~foregoing “Dividends”), ~~“dividends”):~~provided that, (x) in the case of clause (e) below, no Event of Default under Section 11.01 or 11.05 exists or would exist after giving effect thereto, and (y) otherwise, no Event of Default exists or would exist after giving effect thereto: (a) the ~~Borrower~~ Parent may ~~(or may pay dividends to permit any direct or indirect parent thereof to)~~ redeem in whole or in part any of its ~~Stock or Stock Equivalents~~ Equity Interests for another class of its ~~(or such parent’s) Stock or Stock Equivalents~~ Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new ~~Stock or Stock Equivalents~~Equity Interests, provided that such new ~~Stock or Stock Equivalents~~ Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the ~~Stock or Stock Equivalents~~ Equity Interests redeemed thereby; (b) the ~~Borrower~~ Parent may (or may ~~pay dividends~~ make Dividends to permit any direct or indirect parent thereof to) (i) repurchase shares of its (or such parent’s) ~~Stock or Stock Equivalents~~ Equity Interests held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the ~~Borrower~~ Parent and its ~~Subsidiaries or any parent thereof~~Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements to the extent permitted under Section 10.05(k); and (ii) repurchase, redeem or otherwise acquire or retire for value Equity Interests in lieu of withholding Taxes in connection with any exercise, vesting, settlement or exchange, as applicable, of stock options, warrants, restricted stock, restricted stock units or other similar rights; provided that cancellation of Indebtedness owing to the Parent from members of management of the Parent, any of the Parent’s direct or indirect parent companies or any of the Parent’s Restricted Subsidiaries in connection with a repurchase, redemption or other acquisition or retirement of Equity Interests of any of the Parent’s direct or indirect parent companies will not be deemed to constitute a Dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that, so long as (other than~~ the Parent may pay Dividends with respect to ~~clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto, the Borrower may pay dividends on~~ its ~~Stock or Stock Equivalents~~Equity Interests, provided that (x) the amount of ~~all~~ any such ~~dividends paid from the Original Closing Date~~ Dividends pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to the Available Amount at such time and (~~x)(a~~y) ~~if,~~ the First Lien Leverage Ratio shall be less than 3.75:1.00 on a Pro Forma ~~Basis, the Consolidated Total Debt~~ Basis (after giving effect to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z) the Applicable Equity Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(cDividend); (d) the ~~Borrower~~ Parent may pay dividends: (i) the proceeds of which will be used to pay income tax liability attributable to the Borrower and the Restricted Subsidiaries in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of the Borrower Dividends on its common stock in an amount per share not ~~to exceed the income tax liability~~ exceeding 6.0% per annum of the ~~Borrower and~~ QIPO Price per share, so long as the ~~Restricted Subsidiaries were they~~ Consolidated Interest Coverage Ratio shall not be less than 2.00:1.00 on a Pro Forma Basis (after giving effect to ~~file as a stand-alone group, reduced by any~~ such income taxes paid directly by the Borrower or the Restricted Subsidiaries; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third partiesdistribution), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower, not to exceed $3,500,000 in any fiscal year plus (B) any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement (including in respect of any initial public offering); (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower; and (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any of its Restricted Subsidiaries and (C) the Borrower shall comply with Sections 9.11 and 9.12 to the extent applicable; (e) ~~[Reserved]~~the Parent may (i) declare and pay regularly scheduled or accumulated cash Dividends to the holders of the Preferred Stock on a quarterly basis at a rate equal to 6.50% per annum and (ii) upon the occurrence of a Fundamental Change (as defined in the Preferred Certificate of Designation), repurchase any or all of the Preferred Stock in accordance with Section 5 of the Preferred Certificate of Designation; provided that, prior to or concurrently with any such repurchase, the Parent and the Borrower have complied with all obligations hereunder arising out of such Fundamental Change; (f) the ~~Borrower or any~~ Parent may pay additional Dividends with respect to its Equity Interests, provided that the Total Leverage Ratio shall be less than 2.50:1.00 on a Pro Forma Basis (after giving effect to such Dividend); and (g) to the extent not covered by the foregoing subclauses (a) through (f), the Parent may pay Dividends with respect to its Equity Interests in an amount not exceeding the greater of ~~the Restricted Subsidiaries may~~ (i) ~~pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition~~ $50,000,000 and (ii) ~~honor any conversion request by a holder~~ 1.5% of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if Consolidated Total Assets as at the date of ~~declaration~~ such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsDividend.

Appears in 1 contract

Samples: Refinancing Amendment (MRC Global Inc.)

Limitation on Dividends. The Borrower will not declare or pay any dividends ~~(other than dividends payable solely in its Qualified Equity Interests)~~ or return any capital to its stockholders ~~(including any option holders)~~ or make any other distribution, payment or delivery of property or cash to its stockholders ~~as such~~on account of such Stock and Stock Equivalents, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or ~~the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or~~ set aside any funds for any of the foregoing purposes, ~~or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration~~ (other than dividends payable solely in ~~connection with an Investment permitted by Section 10.5) any~~ its Stock or Stock Equivalents ~~of the Borrower, now or hereafter outstanding~~ (other than Disqualified Stock) (all of the foregoing, “dividends”):), provided: (a) the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for another class of its (or such parent’s) Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock ~~Equivalents~~Equivalents (other than any Cure Amount, any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(b)(i)); provided that (i) such new Stock or Stock Equivalents contain terms and provisions (taken as a whole) at least as advantageous to the ~~Lenders~~ Lenders, taken as a whole, in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed ~~thereby~~thereby and (ii) the cash proceeds from any such contribution or issuance shall not increase the Applicable Equity Amount; (b) subject to the last paragraph of this Section 10.6, the Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem, acquire, retire or repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by any present or former officer, manager, consultant, director or employee (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower ~~and its Subsidiaries~~ (or any direct or indirect parent thereof) and any Subsidiaries, so long as such repurchase is pursuant to, and in accordance with the terms of, ~~management~~ any stock option or stock appreciation rights plan, any management, director and/or employee benefit, stock ~~plans~~ownership or option plan, stock subscription plan or agreement, employment termination agreement or any employment agreements or ~~shareholder agreements~~ stockholders’ or shareholders’ agreement; provided, however, that the aggregate amount of payments made under this Section 10.6(b), when combined with Investments made pursuant to Section 10.5(k), do not exceed in any calendar year $25,000,000 (which shall increase to $50,000,000 subsequent to the consummation of an initial public offering of, or registration of, Stock by the Borrower (or any direct or indirect parent company of the Borrower) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $60,000,000 in any calendar year (which shall increase to $100,000,000 subsequent to the consummation of an underwritten public offering of, or registration of, Stock by the Borrower or any direct or indirect parent corporation of the Borrower)); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds from the sale of Stock (other than Disqualified Stock, any Cure Amount, any sale or issuance to any Subsidiary and any contribution or issuance applied pursuant to Section 10.5(f)(ii) or Section 10.6(a)) of the Borrower and, to the extent contributed to the Borrower, Stock of any of the Borrower’s direct or indirect parent companies, in each case to present or former officers, managers, consultants, directors or employees (or their respective Table of Contents Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies) or any Subsidiary of the Borrower that occurs after the Closing Date; provided that such Stock or proceeds of such Stock will not increase the Applicable Equity Amount; plus (ii) the cash proceeds of key man life insurance policies received the Borrower or any Restricted Subsidiary after the Closing Date; less (iii) the amount of any dividends or distributions previously made with the cash proceeds described in clauses (i) and (ii) above; and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from present or former officers, managers, consultants, directors or employees (or their respective Affiliates, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) of the Borrower (or any of its direct or indirect parent companies), or any Subsidiary of the Borrower in connection with a repurchase of Stock or Stock Equivalents of the Borrower or any of its direct or indirect parent companies will not be deemed to constitute a dividend for purposes of this covenant or any other ~~management or employee benefit plan or agreement~~provision of this Agreement; (c) ~~provided that~~subject to the last paragraph of this Section 10.6, so long as ~~(other than with respect to clause (c)(z) below)~~ no ~~Default or~~ Event of Default ~~exists~~ under Section 11.1 or Section 11.5 shall have occurred and be continuing or would ~~exist after giving effect thereto~~result therefrom, the Borrower may pay dividends on its Stock or Stock Equivalents, ; provided that the amount of all such dividends paid from the ~~Original~~ Closing Date pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (x)(a) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (zx) the Applicable Equity Amount at the time such dividends are paid plus (y) the Applicable Amount at such time~~; for the avoidance of doubt~~, ~~amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c)~~ provided that in respect of any dividends ~~previously paid~~ made in ~~compliance with this Section 10.6(c)~~reliance of clause (ii) of the definition of Applicable Amount, (i) the Consolidated Total Net Leverage Ratio shall not be greater than 4.50 to 1.0 (calculated on a Pro Forma Basis after giving effect to such dividends) and (ii) no Event of Default shall have occurred and be continuing or would result therefrom; (d) the Borrower may ~~pay~~ make dividends, distributions or loans to any direct or indirect parent company of the Borrower in amount required for any such direct or indirect parent to pay, in each case without duplication: (i) foreign, federal, state and local income Taxes, to the ~~proceeds of which will be used to pay~~ extent such income ~~tax liability~~ Taxes are attributable to the income of the Borrower and its Subsidiaries; provided that for purposes of this Section 10.6(d)(i), such Taxes shall be deemed to equal the ~~Restricted~~ amount that the Borrower and its Subsidiaries would be required to pay in respect of foreign, federal, state and local income Taxes if the Borrower were the parent of a standalone consolidated, combined, affiliated, unitary or ~~affiliated tax returns filed by a direct or indirect parent of the Borrower in an amount not to exceed the~~ similar income tax ~~liability~~ group including its Subsidiaries; provided, further, that the permitted payment pursuant to this clause (i) with respect to any taxes of any Unrestricted Subsidiary or Excluded Project Subsidiary for any taxable period shall be limited to the ~~Borrower and the Restricted Subsidiaries were they~~ amount actually paid with respect to ~~file as a stand-alone group, reduced~~ such period by ~~any~~ such ~~income taxes paid directly by~~ Unrestricted Subsidiary or Excluded Project Subsidiary to the Borrower or its Restricted Subsidiaries for the ~~Restricted Subsidiaries~~purposes of paying such taxes; (ii) ~~the proceeds of which shall be used to allow any direct or indirect parent of the Borrower to pay~~ (A) ~~its~~ such parents’ and their respective Subsidiaries’ general operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties~~), which~~ ) to the extent such costs and expenses are ~~reasonable and customary and incurred in the ordinary course of business and~~ attributable to the ownership or ~~operations~~ operation of the ~~Borrower~~Borrower and its Restricted Subsidiaries and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries, ~~not to exceed $3,500,000 in any fiscal year plus~~ (B) any ~~reasonable and customary~~ Table of Contents indemnification claims made by directors or officers of the Borrower (or any parent thereof) to the extent such claims are attributable to the ownership or ~~operations~~ operation of the Borrower or any Restricted Subsidiary and (to the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries or (C) fees and expenses otherwise due and payable by the Borrower (or any ~~of its~~ parent thereof and such parent’s Subsidiaries) or any Restricted ~~Subsidiaries~~ Subsidiary and ~~permitted~~ not prohibited to be paid by the Borrower ~~or such~~ and its Restricted ~~Subsidiary under this Agreement (including in respect of any initial public offering)~~Subsidiaries hereunder; (iii) ~~the proceeds of which shall be used to pay~~ franchise and excise ~~taxes~~ Taxes and other fees, ~~taxes~~ Taxes and expenses required to maintain the corporate existence of any direct or indirect parent of the Borrower~~; and~~; (iv) to any direct or indirect parent of the Borrower to finance any Investment permitted to be made by the Borrower or a any Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Borrower or such Restricted Subsidiary or (2) the ~~merger~~ merger, amalgamation or consolidation (to the extent permitted in Section 10.5) of the Person formed or acquired into the Borrower or any Restricted Subsidiary, (C) the Borrower or such Restricted Subsidiary shall comply with Section 9.11 and Section 9.12 to the extent applicable, (D) the aggregate amount of such dividends shall reduce the ability of the Borrower and the Restricted Subsidiary to make Investments under the applicable clauses of Section 10.5 by such amount and (E) any property received in connection with such transaction shall not increase the Applicable Equity Amount; (v) customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or acquisition or disposition transaction payable by the Borrower or the Restricted Subsidiaries; (vi) customary salary, bonus, severance and other benefits payable to officers, employees or consultants of any direct or indirect parent company (and such parent’s Subsidiaries) of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower, its Restricted Subsidiaries and (Cto the extent of cash actually paid by Unrestricted Subsidiaries or Excluded Project Subsidiaries to the Borrower or its Restricted Subsidiaries for such purposes) Unrestricted Subsidiaries and Excluded Project Subsidiaries; (vii) [reserved]; (viii) to the extent constituting dividends, amounts that would be permitted to be paid directly by the Borrower or its Restricted Subsidiaries under Section 9.9(a); (ix) AHYDO Catch-Up Payments with respect to Indebtedness of any direct or indirect parent of the Borrower; provided that the proceeds of such Indebtedness have been contributed to the Borrower as a capital contribution; and (x) expenses incurred by any direct or indirect parent of the Borrower in connection with any public offering or other sale of Stock or Stock Equivalents or Indebtedness (i) where the net proceeds of such offering or sale are intended to be received by or contributed to the Borrower or a Restricted Subsidiary, (ii) in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or (iii) otherwise on an interim basis prior to completion of such offering so long as any direct or indirect parent of the Borrower shall ~~comply with Sections 9.11 and 9.12~~ cause the amount of such expenses to be repaid to the ~~extent applicable;~~Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed; Table of Contents (e) [~~Reserved~~reserved]; (f) dividends consisting of or resulting from Liens, fundamental changes, Dispositions, Investments or other payments permitted by 10.2, 10.3 (other than Section 10.3(j)), 10.4 (other than Section 10.4(d)), 10.5 (other than Section 10.5(l)), 10.7 or 10.8, as applicable; (g) the Borrower may repurchase Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) deemed to occur upon exercise of stock options or warrants if such Stock or Stock Equivalents represents a portion of the ~~Restricted Subsidiaries~~ exercise price of such options or warrants, and the Borrower may pay dividends to any direct or indirect parent thereof as and when necessary to enable such parent to effect such repurchases; (h) the Borrower may (i) pay cash in lieu of fractional shares in connection with any dividend, ~~split~~ distribution, split, reverse share split, merger, consolidation, amalgamation or other combination thereof or any Permitted ~~Acquisition~~ Acquisition, and any dividend to the Borrower’s direct or indirect parent in order to effect the same and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (gi) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof or giving irrevocable notice thereof, if at the date of declaration or notice such payment would have complied with the provisions of this Agreement; (hj) subject to the last paragraph of this Section 10.6, following the one year anniversary of the Closing Date, so long as no Event of Default shall have occurred and is continuing or would result therefrom, the Borrower may declare and pay dividends and may redeem or repurchase on the Borrower’s ~~common stock~~ (or any direct or indirect parent’s thereof) Stock and Stock Equivalents following the registration or first public offering of the Borrower’s ~~common stock~~ Stock or Stock Equivalents or the ~~common stock~~ Stock or Stock Equivalents of any of its direct or indirect parents after the ~~Original~~ Closing Date, so long as the aggregate amount of ~~up to 6~~all such dividends, redemptions and repurchases in any calendar year does not exceed 36.0% ~~per annum~~ of the ~~net proceeds received by~~ market capitalization of the Borrower (or ~~contributed~~ its direct or indirect parent, as ~~common equity~~ applicable, to the extent attributable to the Borrower and its Subsidiaries, as determined in ~~or from any such public offering to~~ good faith by the ~~extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and~~Borrower) calculated on a trailing twelve month average basis; (ik) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock options.; (l) dividends with respect to the Preferred Stock (if any) of PrefCo as set forth in the Plan; (m) the Borrower may make payments described in Section 9.9 (other than Section 9.9(b), Section 9.9(e) (to the extent expressly permitted by reference to Section 10.6), Section 9.9(g) and Section 9.9(l));

Appears in 1 contract

Samples: Credit Agreement (Vistra Energy Corp.)

Limitation on Dividends. The Parent Borrower will not declare or pay any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any capital to its stockholders (including any option holders) or make any other distribution, payment or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in connection with an Investment permitted by Section 10.5) any Stock or Stock Equivalents of the Parent Borrower, now or hereafter outstanding (all of the foregoing, “dividends”):); provided that, so long as no Default or Event of Default exists or would exist after giving effect thereto: (a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) redeem in whole or in part any of its (or such parent’s) Stock or Stock Equivalents for another class of its ~~(or such parent’s)~~ Stock or Stock Equivalents or with proceeds from substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents, ; provided that such new Stock or Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Stock or Stock Equivalents redeemed thereby; (b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent thereof to) repurchase shares of its (or such parent’s) Stock or Stock Equivalents held by ~~any present or former officer~~officers, ~~director or employee (or their respective Affiliates, estates or immediate family members)~~ directors and employees of the Parent Borrower and its Subsidiaries ~~or any parent thereof~~(other than the Xxxxx Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder ~~agreements or any other management or employee benefit plan or agreement~~agreements; (c) ~~provided that, so long as (other than with respect to clause (c)(z) below) no Default or Event of Default exists or would exist after giving effect thereto,~~ the Parent Borrower may pay dividends on ~~its~~ the Stock or Stock Equivalents, ; provided that the amount of ~~all~~ any such dividends ~~paid from the Original Closing Date~~ pursuant to this clause (c) (other than dividends paid pursuant to clause (c)(x) below prior to March 31, 2015), when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(y)(i) from the 2014 July Repricing Effective Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by this clause (c) shall not exceed an amount equal to (~~x)(a~~i) if$600,000,000, less (ii) the amount of Junior Indebtedness purchased in reliance on ~~a Pro Forma Basis~~Section 10.7(a)(i)(x) of the Existing Credit Agreement, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, $200,000,000 or (b) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 7.0 to 1.0, $0 plus (~~y) if, on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 7.0 to 1.0, the Applicable Amount plus (z~~iii) the Applicable ~~Equity~~ Amount at such time; for the avoidance of doubt, amounts prepaid in reliance on and in compliance with Section 10.7(a)(y)(i) shall not retroactively cause any breach of this Section 10.6(c) in respect of dividends previously paid in compliance with this Section 10.6(c); (d) the Parent Borrower may pay dividends: (i) the proceeds of which will be used to pay ~~income~~ (or to pay dividends to allow any direct or indirect parent of the Parent Borrower to pay) (A) the tax liability ~~attributable~~ to ~~the Borrower and the Restricted Subsidiaries~~ each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated ~~tax~~ returns for the relevant jurisdiction of such parent attributable to the Parent Borrower or its Restricted Subsidiaries determined as if the Parent Borrower and its Restricted Subsidiaries filed by separately and (B) for as long as Hercules Holdings is a direct or indirect parent of the Parent Borrower, distributions equal to any taxable income of Holdings or Hercules Holdings resulting from the hedging arrangements entered into by Hercules Holdings on or about September 13, 2006 and with respect to which the Parent Borrower ~~in an amount not to exceed the income tax liability of the Borrower and the Restricted Subsidiaries were they to file as~~ is a ~~stand-alone group, reduced~~ counterparty multiplied by ~~any such income taxes paid directly by the Borrower or the Restricted Subsidiaries~~45%; (ii) the proceeds of which shall be used to allow any direct or indirect parent of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of ~~business and attributable to the ownership or operations of the Borrower~~business, in an aggregate amount not to exceed $~~3,500,000~~ 10,000,000, in any fiscal year of the Parent Borrower plus ~~(B)~~ any reasonable and customary indemnification claims made by directors or officers of the Parent Borrower (or any parent thereof) attributable to the ownership or operations of the Parent Borrower and its Restricted Subsidiaries or (CB) fees and expenses otherwise due and payable by the Parent Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such Restricted Subsidiary under this ~~Agreement (including in respect of any initial public offering)~~Agreement; (iii) the proceeds of which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain the corporate existence of any of its direct or indirect parent of the Parent Borrower; and (iv) to any direct or indirect parent of the Parent Borrower to finance any Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to Section 10.5; provided that (A) such dividend shall be made substantially concurrently with the closing of such Investment, (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets, Stock or Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in Section 10.5) of the Person formed or acquired into the Parent Borrower or ~~any of~~ its Restricted Subsidiaries and (C) the Parent Borrower shall comply with ~~Sections~~ Section 9.11 ~~and 9.12~~ to the extent applicable; (e) ~~[Reserved];~~the Parent Borrower may pay cash dividends to Holdings for Holdings to pay cash dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings Debt, solely for the purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends, (i) the Parent Borrower shall be in compliance with the covenant set forth in Section 10.8 of the CF Agreement for the most recently ended Test Period for which Section 9.1 Financials have been delivered and (ii) the Consolidated EBITDA to Consolidated Interest Expense Ratio would be greater than or equal to 1.75 to 1.00 for the most recently ended Test Period for which Section 9.1 Financials have been delivered; and (f) dividends that satisfy the Borrower or any of the Restricted Subsidiaries may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (g) the Borrower may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement; (h) the Borrower may declare and pay dividends on the Borrower’s common stock following the first public offering of the Borrower’s common stock or the common stock of any of its direct or indirect parents after the Original Closing Date, of up to 6% per annum of the net proceeds received by or contributed as common equity to the Borrower in or from any such public offering to the extent such net proceeds are not utilized in connection with other transactions permitted by Section 10.5, 10.6 or 10.7; and (i) the Borrower may pay dividends in an amount equal to withholding or similar Taxes payable or expected to be payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) and any repurchases of Stock or Stock Equivalents in consideration of such payments including deemed repurchases in connection with the exercise of stock optionsPayment Conditions.

Appears in 1 contract

Samples: Credit Agreement (HCA Holdings, Inc.)

Common use of Limitation on Dividends Clause in Contracts